Woodland v Maxwell & Anor [2015] EWHC 273 (QB)

Case No 9MA91650[2015] EWHC 273 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRY, Manchester Civil Justice Centre
1 Bridge Street West
Venue Manchester, Greater ManchesterDate 13/02/2015
M60 9DJ
Before
THE HONOURABLE MR JUSTICE BLAKE
Between
ANNIE RACHEL WOODLAND (A PROTECTED PARTY REPRESENTED BY HER FATHER AND LITIGATION FRIEND, IAN WOODLAND)ClaimantDEBORAH MAXWELLSecond DefendantESSEX COUNTY COUNCILThird Defendant
Christopher Melton QC and Ian Little (instructed by Pannone) for ClaimantStephen Miller QC and Richard Smith (instructed by DWF LLP) for 2 nd DefendantSteven Ford QC and Kathryn Duff (Instructed by Essex Legal Services) for 3rd Defendant.Hearing Hearing dates: 26 January – Friday 30 January 2015
Judgment

Introduction

[1]On 5 July 2000 at 10.45 am children from the Whitmore Junior School were attending their weekly swimming lesson held at the Gloucester Park pool Basildon. The children were divided into three groups that I will call beginners, intermediate and advanced. The beginner’s group was conducted in a learner pool away from the main pool. The intermediate and advanced groups had their lessons in the main pool. Annie Woodland, the claimant, was one of the children in the advanced group. She was 10 years old and the other members of her group were a similar age.[2]Shortly after she entered the water, Annie was observed by Paula Burlinson, the swimming teacher of the advanced group, floating vertically in the water on the left hand side of the pool (taking directions from an observer at the deep end facing the shallow end). Annie did not respond to questioning or a physical touch. Ms Burlinson shouted for assistance. Another of the swimming teachers, Zoe Dean, responded to this call and the two teachers lifted her out of the water. She was assessed to be still breathing and placed in the recovery position. A few moments later the pool manager, Frank Palmer, attended at the poolside. Annie’s breathing was seen to be erratic or fading. Mouth to mouth and cardio-pulmonary resuscitation was administered.[3]Someone from Mr Palmer’s office called the emergency services; the call was logged by the ambulance service as having been made at 10.54. The ambulance arrived at 10.57 and had left by 11.07, arriving at Basildon Hospital at 11.10. The claimant had suffered cardiac arrest and a serious brain injury caused through lack of oxygen. She has made a remarkable recovery but the episode has left serious brain injuries.[4]This is the trial of her claim that her injuries were caused as a result of negligence. I heard evidence from the following: for the claimant: Kayleigh Iyalla formerly Teeboon (and her parents), Ashleigh Staines, Katie Witham and Professor Perkins. I heard from Debbie Maxwell, Frank Palmer, Zoe Dean and Dr Pearson for the second defendant and Paula Burlinson and Susan Holt for the third defendant. Other statements were read. I will refer to Annie’s former classmates as children and identify them by their first names, although they are now grown women, some with families of their own and in Kayleigh Iyalla’s case pursuing a career as a primary school teacher.

The proceedings

[5]There has been a complex procedural history that explains why it is nearly fifteen years after the accident that a court is determining the primary facts on which the negligence claim depends.[6]In 2001 all parties had different legal teams. A claim was instituted against the Swimming Teachers Association (STA). All of the teachers conducting or supervising the lessons on 5 July 2000 had been engaged by Beryl Stopford who was a former swimming teacher who ran an organisation called Direct Swimming Services (DSS). Mrs Stopford, Ms. Dean, Julie Martin (the teacher conducting the 10.45 class in the learner pool) and Debbie Maxwell (who was performing the role of lifeguard at the material time) were members of the STA. As it happens Paula Burlinson was not a member at this time, although Mrs Stopford thought she was. DSS had a contract with various schools in Basildon including Whitmore Junior School to supply swimming classes as part of the physical education curriculum. All the swimming teachers supplied by DSS were either currently or formerly employed by Basildon as swimming teachers and had familiarity with Basildon’s operating and emergency procedures. STA had no responsibility for the organisation of the lessons but provided insurance cover for its members.[7]Once the position was clarified, the claim was amended to name Mrs Stopford and Ms Maxwell as defendants. Paula Burlinson was never a defendant as she was not an STA member and not insured for this activity. At some point an admission of liability was made on behalf of some of the defendants, but when the claim was transferred to the present solicitors for Ms Maxwell, the matter was reinvestigated and a successful application was made to withdraw it.[8]These events are background only but explain why some draft witness statements were produced in 2001, and why a statement was made in April 2010 by Ms Sell-Peters, the second defendant’s solicitor, explaining the instructions she had received from Mrs Stopford and Ms Maxwell. An amended defence was filed on behalf of both of them. In late 2014 Mrs Stopford’s insurer decided that she was not covered for any negligence as an employer or provider of swimming teachers, and she was left without legal representation.[9]In the course of the proceedings the claimant had joined the local education authority, Essex County Council, as the third defendant on the basis that it owed the claimant a non-delegable duty to take care of her in school swimming lessons. This claim was struck out by the High Court and the decision was upheld by the Court of Appeal, but the Supreme Court reversed it in October 2013 [2013] UKSC 66. The claimant is thus able to sue the third defendant on the basis that either the second defendant, as lifeguard, or Paula Burlinson, as teacher, (or indeed both), failed to discharge the duty of care owed to her. In those circumstances, the claimant discontinued the claim against Mrs Stopford. The third defendant’s claim for a contribution against the first and second defendant was adjourned to a further hearing (if necessary) in the light of the court’s primary findings of fact.

Investigations

[10]Within moments of the accident occurring, Frank Palmer had called all the swimming teachers on duty to his office to have a brief discussion as to what had happened and then asked them to make written statements that were typed up. The statements of the three swimming teachers are set out at Appendix A to this judgment.[11]The Health and Safety Executive (HSE) reviewed this material, and obtained some further statements from the teachers but not from Annie’s fellow pupils. A first report was produced making a number of recommendations.[12]Whitmore Junior School does not appear to have conducted an investigation of its own. Susan Holt, the head of Physical Education and the lead teacher who attended the swimming pool on 5 July, began to obtain information from the children as they were waiting to board the bus to return to school after the incident. On 7 July she wrote a letter recording information that she obtained from Ashleigh Staines (Appendix B).[13]Meanwhile, another pupil in the pool, Kayleigh Teeboon, told her parents what had happened at school when she returned home. Her parents were so concerned at what they heard that they invited her to write down her experience that night. She did so and produced a neater version of the same account the following day (Appendix C). She also prepared a detailed sketch plan of Annie’s whereabouts in the pool.[14]Other children also recorded what they remembered in the weeks and months after the accident. The children’s statements led to a further HSE review and a second report that reached more critical conclusions as to the safety procedures adopted. Unfortunately, if the first investigation was defective in that it did not take into account the views of the children, the second seems to have been conducted without exploring with the DSS teachers what the children were saying.[15]As a consequence of all this there are gaps in the evidential picture. There is no scaled plan of the pool (that was demolished in 2011). Each of the witnesses who gave evidence has had the disadvantage of recollecting events that happened within minutes many years ago.

The routine for the swimming lesson

[16]The Gloucester Park pool was a conventionally shaped swimming pool with a deep end and a shallow end 33.3 metres long and 12.5 metres wide. Access to the main pool was through a passageway flanked by the changing rooms.[17]Debbie Maxwell, Zoe Dean and Paula Burlinson were all trained as swimming teachers and had extensive experience of taking lessons in this pool. Debbie Maxwell and Zoe Dean were, in addition, trained as lifeguards. The roles of swimming teacher in the main and learning pool and lifeguard rotated throughout the day, but Ms Burlinson never undertook lifeguard duties as she had no training in rescue and resuscitation.[18]Although the classes were billed as starting 15 minutes past and before the hour, the lessons would not start precisely at these times. The whistle had to be blown from the previous session. All the children had to leave the pool and be escorted away by their accompanying school teacher. The next class was waiting in an area by the shallow end while the pool was cleared. They were then placed in the charge of the DSS teacher, moved to the deep end, were briefed on the lesson and entered the water when instructed.[19]The children had been taught at the start of the term that they should not dive in, even if they had the skills to do so. They should only enter the water by jumping or lowering themselves in. Ms Burlinson’s class was using a double lane on the left of the pool, just over two metres in width. The pupils would line up in three to four lines. The plan that Kayleigh completed on the night of the incident showed four lines of pupils. There was little disagreement with its accuracy on that point. The pupils would then jump into the water in ‘waves’ swim to the end of the pool, exit, walk back to the deep end and then jump in for a second length. Each wave was separated by a suitable distance adjudged by the teacher. The pupils waited for her command to jump in. Ms Burlinson told the court that once the first two waves were in the pool it was her practice to walk from the deep end along the left hand side to a point approximately mid way down the pool between the five and six foot depth markers, where she could keep the whole class under observation. She would signal to the next wave to enter from this more distant position and the children would also know when it was safe to jump in by a marker on the pool indicating an appropriate distance. She said that she had another reason to move down the poolside that day which was to remonstrate with some pupils who had left the pool using steps at the side rather than swimming a full length.[20]From information supplied in 2000 by the head teacher, it seems that 50 pupils were swimming in the main pool that day, with three school teachers accompanying them Mrs Holt, Mrs Beecham and Mrs Tabbard, a supply teacher attending the school for the day. The role of the school staff was to supervise pupils in the changing room and on the pool side and to escort them to and from the pool. There was no information as to whether the groups were evenly divided between intermediate and advanced and there may have been between 20 and 30 pupils in Mrs Burlinson’s class.[21]Although the recommended ratios were one teacher for every 20 pupils, it was not suggested that it was negligent for each swimming teacher to have a larger class. There were two swimming teachers and one lifeguard to oversee the swimming and in addition there were the three school teachers in attendance at the pool side. However, the class size emphasises the importance of the lifeguard function as an independent observer.[22]Basildon’s Normal and Emergency Operating plan reached 21editions and the version dating from 2010 was all that was available at trial. It is common ground that the same core safety procedures were found in the earlier edition applicable in July 2000. Paragraph 3.1 provides:
“Within the overall safety procedures for any complex that incorporates a swimming pool the role of the lifeguard is paramount. It is this person’s observation, awareness, vigilance, control, training, responses and risk appreciation that ensures a safe leisure environment.”
[23]There were several lifeguard chairs around the main pool. It is common ground amongst the experts that generally the best place for a lifeguard to observe swimmers is from the raised height of a chair. This did not mean that a lifeguard must always stay in the chair. Problems with sun glare on the surface of the pool, water quality or blind spots may make it reasonable to observe from elsewhere, including the sides of the pool.[24]In his witness statement, Mr Palmer put it thus:
“During the school swimming programme, the lifeguard in place would have had to constantly assess the activity and the risks posed. I would not have expected him or her to remain in the chair at all times as there may have been areas of the pool which required particular attention during certain times and the light conditions at times may have meant that there was a more suitable place than the chair for the lifeguard to take up his or her position.”
[25]I accept that evidence. In the HSE follow up to this incident, there was a recommendation that the lifeguard should always be installed in the chair before the swimming lesson began. Subject to Mr Palmer’s views that the chair was not always the best place to assess the activity, it appears that this recommendation was not a new one but emphasised previous best practice. There had been occasions before July 2000 when DSS lessons had started without a lifeguard in place and Mr Palmer had informed Mrs Stopford that this was not acceptable practice. Ms Maxwell was aware of this. Ms Burlinson said it was her practice not to start a lesson before the lifeguard was in place, but it was not part of her training so to do.[26]Mr Mills was the safety expert instructed by the second defendant. In November 2011 he prepared a report indicating that the basic principle in lifeguarding is the 10: 20 scan, where a lifeguard scans all of their area in 10 seconds and is able to get to a casualty in a further 20 seconds. This principle had been communicated in the lifeguarding qualification since 1993.

The factual issues relevant to liability

[27]The claimant’s case is that Paula Burlinson as swimmer teacher and/or Debbie Maxwell as lifeguard failed to exercise reasonable care in the performance of their duties on the day of the accident, in that each failed to keep pupils under observation when in the water and failed within a reasonable period of time to observe that Annie was in difficulties, raise the alarm and effect a rescue. Timing was, therefore, the critical issue. Her treatment after she had been removed from the water was not an issue at this trial.[28]The opinion of the medical expert, Professor Perkins, was that the rescuers had been mistaken in concluding that Annie was still breathing when taken from the pool, and they had been misled by agonal breathing. Agonal breathing is terminal breaths, taken as a reflex in the first few minutes after the heart has stopped (i.e. after the person is in cardiac arrest). However, if this were the case they were not negligent in their responses on the basis of knowledge and practice at the time and the fact that they placed in the recovery position when CPR was appropriate it was not a further basis for liability.[29]The evidence of Professor Perkins was to the effect that the process of drowning was a continuum from the first submersion of the airways in water, through to the stopping of the heart. When the body no longer received oxygen the lips would turn blue and hypoxic deficit occurred. The period of time needed to reach this condition varied from a minimum of 30 seconds, with a rising degree of confidence until a period of 90 seconds or more had been reached. The combination of hospital findings of severe impairment of oxygenation (as indicated in arterial blood gas measurement), pulmonary oedema, Frank Palmer’s description of laboured breathing (consistent with agonal breathing), and the evidence of some of the children that Annie had blue lips (consistent with central cyanosis) led him to conclude that Annie was in cardiac arrest when pulled from the water. He did not think that a report that she had a pulse was inconsistent with that conclusion as experience showed that reports of a pulse by people who were not trained clinicians was no longer regarded as reliable evidence of heart function.[30]At one stage there was a medical issue between the medical experts as to whether the claimant had suffered a primary cardiac event before taking in water. This hypothesis was based on a subsequent report from the ambulance crew of their recollections of the electrocardiographic trace on the journey to hospital. The trace records were no longer available for analysis. By the end of the trial, there was consensus that this data was too fragile to afford a reliable basis for a finding that a cardiac event was an alternative to near drowning as the primary cause of her injuries. This hypothesis can therefore be discarded. Annie’s injuries were the consequence of a near drowning episode, and the probability is that if she had been spotted and rescued earlier, she would not have suffered the injury that she did.[31]It was common ground that Ms Burlinson encountered Annie and sought assistance to retrieve her from the water at about the half way mark of the pool. Kayleigh said that as a good swimmer she could swim a length inside a minute. Annie was reputed to be one of the strongest swimmers in the pool, although it subsequently transpired that Ms Burlinson’s assessment derived from the fact that she was in the advanced group. She might well have swum the 16-17 metres of the half length in about 20-30 seconds before stopping. It is then necessary to add some time for her to have got into difficulties and then progress through the continuum as described by Professor Perkins. If she was indeed in a state of cardiac arrest when first pulled from the water as Professor Perkins considered to be likely the she would have been in the water for a minimum of some 50 seconds, and may well have been there for longer.[32]The claimant relied on the contemporaneous accounts of Kayleigh, Ashleigh and Katie that they had seen Annie in difficulties in the water, and variously described her bobbing up and down, with a white face and blue lips. Two of them had tried to effect a rescue and had brought her body to the edge of the pool. Kayleigh’s sketch plan had placed Annie at the third position of the four spaces in the two metre double lane when about to enter the water. If this was right and she had been swimming straight ahead for the first 16 metres, she had somehow moved one and half metres towards the poolside when Ms Burlinson saw her. All of this would have added an un-quantified further period of time before Ms Burlinson came upon her. Kayleigh and Ashleigh claim that they had shouted and otherwise unsuccessfully sought to attract her attention. Kayleigh said that the lifeguard (which in context meant Ms Burlinson the swimming teacher) had not responded because she was deep in conversation with another adult. Ashleigh said that no one heard because it was noisy in the pool.[33]Ms Burlinson disputes that the children ever rescued Annie or were shouting to attract her attention or that she was in conversation with another adult. In her 2000 statement she stated that the lesson got under way by 10.48. She thought that Annie was in the third wave to enter the water and was in the water only 10 to 15 seconds when she spotted her approximately halfway down the pool. In her evidence she said Annie was in the water for seconds, and she adhered to the assessment of 15 seconds. She reached this conclusion by inference from where Annie was when she encountered her. When she obtained no response from Annie, she lifted her chin onto the ‘scumline’ on the pool perimeter and with her free hand blew her whistle three times. After a pause for a response she shouted across the pool to Zoe Dean. Zoe Dean walked from midway on the right hand side round the shallow end of the pool Ms Burlinson (approximately 44 metres). Ms Dean was a number of months pregnant at this time and estimated the journey took about 40 seconds. A few moments later Frank Palmer attended and CPR was administered. It seemed likely that whilst this was going on a member of his staff had called for the ambulance.[34]It was common ground that Debbie Maxwell never mounted the lifeguard chair that session. In the May 2011 defence filed on her behalf, it was contended:- i. No lifeguard was required at all as this was a programmed teaching session and not a general public session. ii. Sufficient supervision could be afforded by the swimming teacher. iii. At 10.45am the sun was high in the sky making it difficult to see in to the water. The temperature on the chair was oppressively hot. For both reasons it was reasonable for the lifeguard to mitigate the effect of the sun by patrolling on the poolside. iv. At the time of the accident Ms Maxwell was on the (right hand) side of the pool scanning when a teaching assistant alerted her to the area where Paula Burlinson was and inquired if there was a problem.[35]At the start of the trial Ms Maxwell’s team tendered a further witness statement from her that gave rather a different picture. She now stated that she was not in the main pool when Ms Burlinson’s class started. She had been the teacher at the learner pool at the 10.15 am session and she had waited for Julie Martin to relieve her before entering the main pool through the corridor. As she came into the main pool area, she was aware that pupils from Ms Burlinson’s class were already in the water. She started scanning the pool from the shallow end, which was not the best observation place, and she walked to the lifeguard’s chair on the right hand side of the pool intending to mount it. She had not had time to do so before her attention was drawn to the incident on the other side of the pool.

Conclusions

[36]By reference to Professor Perkins opinion set out in [29] above, I am satisfied that Annie was in the water for at least 50 seconds and was in difficulty taking in water for at least 30 seconds. I recognise that this in part depends on the reliability of the children’s accounts to be considered below, but once a primary cardiac event is discounted as the reason why she stopped swimming and got into difficulties, lack of oxygen caused by taking in water and failing to breathe is the only other explanation of her injuries. The continuum described by Professor Perkins will take some seconds to progress through, whatever point was reached by the time Ms Burlinson held her airway above the water.[37]The stark fact is that this was not noticed by Ms Burlinson, who was apparently teaching her group only a few feet away, or by Ms Maxwell who was on lifeguard duty that day and whose role in scanning the pool to ensure that children were safe was paramount.[38]On any basis, I conclude that Ms Burlinson was wrong in her estimate, that Annie had only been in the water for 15 seconds. I recognise that as a swimming teacher she has to keep her eyes on some 25 children in all: some of whom were waiting to enter the water; some were swimming and some getting out at the end of the pool. She may well have had to deal with children leaving the pool prematurely. However, whilst all this might explain some modest delay in identifying a child in difficulties, she offers no explanation of why she failed to spot Annie for as long as 20-30 seconds.[39]Equally, I can identify no reasonable explanation why Ms Maxwell failed to spot that Annie was in difficulties during this same period. If she is right that Zoe Dean’s class had not started when she first entered the pool, her attention would have been focused on Ms Burlinson’s class. She says she saw that some children were in the water. She walked the 26 odd metres from the passageway on the poolside to the lifeguard’s chair on the right; this would probably have taken 20 seconds. If a scan is supposed to be completed in 10 seconds she could have made two such scans in this time.[40]Her suggestion that Ms Burlinson’s class had started before she entered the pool is a novel one. It is not mentioned in her July 2000 statement given to Mr Palmer; her September 2000 statement to the HSE inquiry; her signed and corrected statement made in October 2001 in response to the claim brought against the STA; her April 2010 account given to Ms Sell-Peters; her detailed witness statement for trial made in September 2010; or her May 2011 defence.[41]She can identify some support for this contention from Zoe Dean, who agreed with it when cross examined. However, Ms Dean had similarly never mentioned anything to this effect before from 2000 to 2011 when she gave her account. I cannot accept their explanation that both were merely confining themselves to questions asked of them and did not consider the late arrival of the lifeguard/premature start of the lesson, something to be volunteered either as relevant to the issues being investigated by Mr Palmer and the HSE or those arising in this claim.[42]Ms Maxwell accepted that she was aware that lessons had started before a lifeguard arrived on occasions before July 2000 and Mr Palmer had raised this as a practice that should not continue. Further, both would have been aware by the time they made their statements that the first HSE inquiry made a recommendation that lessons should not start before the lifeguard was in the chair.[43]I conclude that there has been a remarkable departure from the second defendant’s pleaded case as set out at [34] above. Of the four points, the first two have been abandoned as flagrantly contrary to the operating procedure at this pool as described by Frank Palmer. The third point was abandoned in the account given by Ms Maxwell in her evidence. She told me that she was walking to the lifeguard chair intending to sit on it as the best point to observe the children in the pool. It was not, therefore, contended that either glare from the summer sun or oppressive heat made the chair unsuitable as the vantage point for scanning on that day. The consensus between the defence experts and Mr Palmer, that the lifeguard did not need to be remain in the chair the whole time, has thus been overtaken by this new account of events. In substance, Ms Maxwell now says that she was not deciding to scan from the poolside because she thought that was the best place on the day, but because she had not had time to get to the chair.[44]I cannot accept that Ms Maxwell was prevented from adequately performing her duties as lifeguard because the class had started early when she was not present. If that had been her case, she should and would have spelt this out to others, not least her legal team, many years before hand. I am satisfied that the shift in her account is not explained by some recent jog of her memory, but the recognition that the timing evidence made her previous account untenable.[45]Ms Burlinson disputes the assertion that she started her lesson prematurely and says she did not permit the children to enter the water until Ms Maxwell had entered the pool but did so as soon as she entered. Ms Maxwell may well be right that she was at the shallow end of the pool and not by the lifeguard chair when this lesson started. Scanning from this position may have been less effective than from half way down the length of the pool; however there is nothing in the evidence to suggest it was not possible.[46]If she had considered that she could not effectively scan when moving from the shallow end to the preferred point half way down the right hand side of the pool’s length, she could have said so on the day or shortly after. I do not accept that she was powerless to do anything about a premature start to the lesson once she became aware that the lesson had started before she reached the chair. Her responsibilities would have entitled her to blow her whistle to stop more children getting into the water until she was in the most effective position to scan the water. She was the designated lifeguard and had the relevant training whilst she knew Ms Burlinson did not. She may not have been the team leader on the day but she accepted that she was the informal coordinator on safety issues and the safe procedure laid down by Basildon. She signed the Accident Form on 6 July 2000 as ‘the person involved in the incident’ although the contents of the form were populated by Mr Palmer from the information obtained from the DSS teachers.[47]In any event, if the children only entered the water when Ms Maxwell was at the shallow end of the pool, and it took 20 seconds for her to walk to the chair, she would have arrived there by the time that the claimant had swum the 17 metres to the point half way down the pool where she started to have difficulties. An experienced lifeguard like Ms Maxwell would have had ample time to scan effectively from the poolside or the chair during the 30 seconds during which the near drowning process was underway.[48]Further, I am satisfied that Annie’s fellow pupils did encounter her in the water in an advanced state of difficulties and attempted to rescue her and consequently she had stopped swimming for longer than the minimum period of 30 seconds. I reach this conclusion for the following reasons:- i. Mrs Holt received an account of attempted rescue and taking Annie to the side of the pool shortly after 11.00 of the morning of the incident (Appendix B). ii. The triage notes in the Accident and Emergency Department of Basildon Hospital were completed at 11.10. They record:
‘swimming for 5-6 minutes when she suddenly stopped. Friend swimming i/c her said her head (?) started to shake and then she went white .. blue lips. Help was called for.’
We do not know who gave this information. Annie was unconscious. The children were being taken back to school. It is possible that a school teacher may have attended hospital and supplied this information. It suggests that very early on a child was referring to blue lips. A very similar version is recorded in the triage notes at 11.50:
‘according to friend head started shaking and face went white and lips went blue. Friend called for help’ iii. The medical records also disclosed a note prepared by Dr Khalifa the Paediatric Registrar at Basildon Hospital (untimed) in which he records a conversation he had with Mr Palmer. Some of the information is derived from the statements he obtained from the swimming teachers but he is also recorded as saying: ‘10 seconds swimming shaking and head going forward, the friend behind called the swimming teacher who took her out of the water in less than 10 seconds.’
Mr Palmer recalled the conversation but could not say who provided the information quoted that does not appear in the statements. He would have no knowledge of his own, and had not spoken to the children. The overwhelming inference is that this information emerged from the initial collective conversation he said he had with staff before the Appendix A statements were written up. iv. Annie’s position when observed by Ms Burlinson, and her starting point as recorded by Kayleigh, indicates that she had moved one and a half metres (over four feet) to the poolside. Such movement cannot be explained by Ms Burlinson but is consistent with the children having brought Annie to the side of the pool as Ashleigh told Mrs Holt and Kayleigh recorded in her statement that evening v. Kayleigh’s contemporary statement records Annie’s face under water as being white with her lips black. Ashleigh’s statement made somewhat later in July 2000 records ‘Annie did not seem right and her lips went blue and her face was very white’. Katie in her statement made in 2000 records ‘her head was bobbing up and down then I saw going under and deeper in the water’. Professor Perkins regards these as pertinent descriptions of the near drowning process and lack of oxygen. It is improbable that the children invented these descriptions. vi. Other children made written statements to their parents or others supporting parts of these accounts. There are also differences. vii. Understandably Ashleigh and Katie could add little to their statements when they gave evidence. Kayleigh was firm in her recollection of core details and the reasons why she recorded them so promptly. Taken together this is an impressive body of contemporaneous or near contemporaneous evidence of the children having witnessed a school friend in difficulties and attempted to rescue her.[49]There are other aspects of Kayleigh’s account that do not have the same degree of support. At first blush it does seem improbable that she and Ashleigh could have dived back into the pool to rescue Annie when diving was prohibited and none of the adults in the pool noticed this. Equally, it seems inconceivable that an experienced swimming teacher could have ignored repeated loud cries for help, or would have told the children off for interrupting her conversation with another adult. This would amount to evidence of a gross dereliction of duty by Ms Burlinson. I cannot reach a conclusion to the requisite degree of satisfaction that these events did occur, although they may have done.[50]As the trial progressed my confidence in the reliability of the basic narrative of the children’s accounts strengthened. Each of their accounts seemed to me to have been a conscientious attempt to recollect what was, undoubtedly, a traumatic event. By contrast, the reliability of the evidence of three DSS teachers diminished. All three added details that were not previously mentioned. In my view, each gave some implausible explanations for omissions in previous statements. Ms Burlinson made assertions of fact that, when explored, transpired were based on debatable assumptions.[51]There are a number of matters on which no conclusions can be reached: how many lengths had any of the children swam in the pool before the alarm was raised and whether Ms Burlinson blew her whistle (unremembered by anyone else) before shouting to Ms Dean. It seems likely that Mrs Beecham was the school teacher who drew Ms Maxwell’s attention to the incident on the other side of the pool. The supply teacher Mrs Tabbard may have been at the shallow end or could have walked up to the left hand side of the pool, but in the absence of a witness statement from her, there can be no sufficient clarity for a finding that she was talking to Ms Burlinson at the time when Annie got into difficulties.[52]The question then is whether, on these primary findings of fact, the actions and omissions of either Ms Burlinson or Ms Maxwell fell below that which could reasonably be expected of them as teacher and lifeguard responsible for the school swimming lesson of a group of 10 year olds?[53]I accept the timing is tight and those supervising swimming lessons cannot be expected to spot every incident and respond instantly. The children did not enter the water until after 10.45 and Ms Burlinson may well be right in her original estimate of 10.48. I was unimpressed by her evidence that the timing of 10.48 was intended to refer to when the children were waiting for the lesson to begin at the shallow end of the pool. The note is clear that this was when the children were instructed to enter the water.[54]Working backwards from when the ambulance was called at 10.54, it is likely that the rescue had begun and Annie was out of the water, two minutes or so earlier. It is possible that she was in the water for three to four minutes, and she could not have been in the water for longer than six minutes, even making due allowance for potential uncertainties in the assessment of the chronology. However, this time range can accommodate all the events described above: a 20 second swim, a 30 second period of taking in water and the onset of hypoxia, some seconds for an attempted child rescue, Ms Burlinson identifying Annie in the water, lifting her chin and then calling for help.[55]I am driven to the conclusion that for her to fail to notice a pupil in difficulties in the water for more than 30 seconds, falls below the standard of care reasonably to be expected of a teacher. Apart from possibly having to remonstrate with some pupils who exited the pool too early, she had no legitimate distractions to explain this period of time. Her estimate of how long Annie was in the water overall is seriously adrift of the realities of the situation. It is not possible to determine why her attention was deflected from her pupils who were in the water and the one pupil who was in difficulties there, but I am satisfied that it was deflected and the opportunity for an earlier response was missed.[56]Debbie Maxwell was considerably further away from Annie. If she was at the shallow end of the pool when Ms Burlinson’s group entered the water, this is not the best place for a lifeguard to scan the entry into the water of the pupils. She then moved half way down the right side of the pool, which would be a better place to keep the pool under observation overall. Once Zoe Dean’s class had started, as her pupils were the less strong swimmers, it would be reasonable for the lifeguard to be situated on that side of the pool and give those pupils particular attention.[57]However, the lifeguard is there to keep an eye on all pool users, and one might have expected the deep end of the pool to be the place where observation needed to be maintained. It was common ground that entry to the water is a particular time of danger for children. There was sufficient time available for her to have performed her functions effectively despite the distance away. There was some urgency in the situation when she realised that the children had entered the water before she climbed the lifeguard chair. A lifeguard needs to remain alert to dangers, focused on the users of the pool, and keeping constant observation and intervening if necessary. If a rescue is to be effected she is the person who is trained to undertake it and whose role it is to do so. I am satisfied that her failure to observe Annie until her attention was drawn to her by Mrs Beecham, either at the same time as or shortly before Zoe Dean reached Ms Burlinson, is indicative of a failure to perform her role to the reasonable standard to be expected. Although I cannot be sure that Ms Burlinson blew her whistle as she claims, she certainly shouted across the pool to Ms. Dean. This was not heard or noticed by Ms Maxwell. All in all, I conclude that she was not paying sufficient attention to users in the water on the other side of the pool at the material time.[58]If she had spotted Annie within seconds of her getting into difficulties, she could have raised the alarm and started the rescue process even if Ms Burlinson’s attention was distracted elsewhere. The lifeguard’s duties are an additional safety feature intended to be distinct from the responsibilities arising from taking a class. Her failure therefore significantly contributed to the passage of time before Annie was seen and rescue effected.[59]In the event I find that both Debbie Maxwell and Paula Burlinson were negligent and as a consequence the third defendant is liable for their negligence. The claimant therefore succeeds on this trial of liability as these failures of the duty of care caused or materially contributed to Annie’s injuries. . Appendix A reports made by the swimming teachers for Frank Palmer 5 July 2000 Report From: - Debbie Maxwell. Direct Swimming Services I was walking towards the deep end of the pool on the left hand side. I was overseeing the children in the water when a teacher said “is there a problem over there”. I looked across and saw Zoe Dean heading to help Paula who was bent over the side of the pool holding a child. I ran round the pool to assist. The children were then told to sit on pool side with their teacher. I ask the teachers to obtain the child’s medical records by phoning the school and also asked the teacher if the child suffered from asthma or epilepsy because she was having difficulty in breathing. The teacher then went to the phone the school and returned to say that there were no known medical problems with that child. The child was already in the recovery position, I noticed her breathing was heavy, then Frank Palmer arrived shortly after me and took over the care of the child. We monitored her breathing and circulation which then started to fail and then Frank commence resuscitation procedures, she then began to breath again and was once again put into the recovery position. Then the child’s vital signs once again failed and Frank Palmer commenced CPR whiles Zoe began mouth – mouth, shortly after the paramedics arrived. Report from – Zoe Dean Direct Swimming Services I was walking towards the shallow end from the deep when I heard Paula call the children had just entered the water I looked across the pool and saw Paula holding a child’s chin and arm I went to assist. We turned the child around and she started to cough, she was responsive (groaning) but her eyes were slightly open and rolling, my first thought was that she was having a fit. Paula spoke to her asking if she could hear and she nodded yes, she began to pull against us. She was then pulled out and during this manoeuvre she began limp. She was put in a semi recovery position; her breathing was being monitored but was laboured. Frank palmer approached us and asked if we had a pulse. Just after this her breathing stopped and Frank Palmer began resuscitation. Her pulse was checked again there was no pulse |I began resuscitation and Frank Palmer started CPR, she began to breath again and was put into the recovery position. During this time her pulse stopped and resuscitation was started after which she began to breath again. Whilst monitoring her her pulse remained and her breathing stopped. Frank palmer continued resuscitation and the ambulance arrived. Report from Paula Burlington (misspelt in the original) Direct Swimming Services While teaching Whitmore School at approximately 10:48am, the children was instructed to enter the deep and, they entered with a jump and swam front crawl. The child in question is one of the strongest swimmers in the school, swimming in the top group. I began walking towards the shallow end between the 5 and 6 ft area I noticed a child face down to the wall she had only been in the water for less than 15 seconds, I thought she had stopped to look for goggles and bent down to lift her head up. I pulled off her goggles and spoke to her but her was unresponsive. I then blew my whistle I saw Zoe and shouted for her, Zoe and myself turned her around and spoke to her. I kept her airway open whilst talking to her she pulled her onto the side she became responsive and was breathing for approx 5 seconds. Her breathing became laboured and she became unresponsive again. She was put into the recovery position as she was breathing but unresponsive. Debbie Maxwell arrived followed by Frank Palmer and I went to instruct the children to sit on the poolside. Appendix B Susan Holt letter Dated 7 July 2000 Re: Incident at Gloucester Park Swimming Pool Wednesday 5 July During weekly organised swimming lesson session the swimming group I was attached to had swum one warm up length and some were on their second, when a child came to me to say a teacher was needed across at the other side of the pool. I looked over to see the swimming instructor kneeling at the side of the pool holding Annie in the water at the edge of the pool. I went over. By the time I got there two instructors were holding Annie in the water speaking to her. They pulled her out safely and laid her in the recovery position, talking to her all the time. The rest of the children had been taken out of the water and we asked them to sit at the area at the deep end. Other pool representatives came through to help. I felt I needed to phone school to tell them what was happening and to ask them to get in touch with Annie’s parent’s. I also requested if it was possible for Mr North to come to Gloucester Park. (An ambulance had been called.) When I returned I was asked if Annie suffered from asthma or any other like ailment due to her breathing pattern. I re-phoned the school. Records were checked – there were no ailments listed. I told this to the people attending to Annie. They asked if it was possible to check with other children in her class. Went to ask the girls sin Class 7. They said they did not think Annie had asthma or any similar ailment. One did say that Annie had a cyst on her head from something when she had been younger. I went back to relay this information to the pool staff. The paramedics and ambulance arrived promptly. Tlhere was not enough room in the ambulance to allow a school staff member to accompany Annie to Basildon Hospital. When the rest of the children were outside, I asked for any children who saw what happened to come across. Ashleigh and a few others came to me. (Mr. North had arrived at the pool.) Ashleigh said that she had been swimming behind Annie when she saw Annie shake her head several times (as if to get hat properly wet?) Annie then went under water and Ashleigh realised something might be wrong. Ashleigh caught hold of Annie and managed to bring her to the surface. She said Annie was very heavy. She got Annie over to the wall (which they were close to). Ashleigh, Kayleigh and Nicola were there shouting for the swimming instructor who came down to where they were. (What followed is as above.) SM Holt (Mrs) Teacher Appendix C The neat version of handwritten statement of Kayleigh Beeboon written out 6 July but based on an earlier version 5 July made at her home. Original spelling retained. Annie dived in and was swimming fine. Me and Ashleigh dived in and swam length. When we were at the end (Ashleigh said I thought I saw someone in the water drowning, but I said they were; probably just wetting their hair. Me and Ashleigh walked back and saw Annie under the water with her eyes closed and her lips were black and her face was white. I dived in and then Ashleigh dived in. Me and Ashleigh both pulled her up out of the water we swam to the side. We both tried to push her up from the water but it wasn’t working, then I climbed out while Ashleigh was pushing her I was pulling her up on the side. I held on to Annie whiles Ashley climbed out. We pulled her halfway up onto the side. Me and Ashley was shouting for help. The lifeguard told us to shut up, but we kept saying Help! Help! someone’s drowning Help! But the life guard wasn’t listening to us because she was talking to another life guard. We shouted 10 or 11 times. In end Ashleigh slapped her legs. The life guard turned around and was just about to have a go at us when she saw us struggling to hold A(nnie) out of the water. The life guard pushed us out of the way so Annie fell back into the water. She pulled Annie out by the hat and her hat fell off. Annie fell back in again. The lifeguard pulled her out by her neck and her arm. Another life guard done a kiss of life but Annie wasn’t respond The other life guard sent everyone to go back to get changed. Statement of Kayleigh Teeboon Of incedent at Glouster Park Swimming Pool On Wednesday 5th July KM Teeboon 6/7/00 date of statement.