QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| HAMPSTEAD HEATH WINTER SWIMMING CLUB (1)
MARC SANDFORD HUTCHINSON (2)
|- and -
|THE CORPORATION OF LONDON
|THE HEALTH AND SAFETY EXECUTIVE
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Timothy Straker QC and Philip Coppel (instructed by A J Colvin, Comptroller and City Solicitor) for the Defendant
The Health and Safety Executive did not appear and was not represented.
Crown Copyright ©
Mr Justice Stanley Burnton:
"The Comptroller & City Solicitor introduced the report and drew attention, in particular, to Counsel's advice that while the question of potential civil liability had been largely resolved by case law and the insurance arrangements which the swimmers would be able to put in place, Section 3 of the Health and Safety at Work Act 1974 presently stands in the way of the Corporation permitting unsupervised early morning swimming in the ponds. Counsel further advised that the Corporation's Members and officers could be criminally prosecuted by the Health and Safety Executive should an accident occur, or the HSE feel that the Corporation had not complied with its statutory obligations.
MOTION: That in the light of the advice received from Counsel the Committee approve the recommendation of the Comptroller & City Solicitor that the request of the United Swimmers Association for self-regulated swimming in the Mixed Pond be refused.
RESOLVED: That the Motion as set out above be agreed."
"19. I find it a very difficult to see how one can deny the proposition that the provision of recreational facilities unsupervised by lifeguards and subject only to self regulation through the licence the Corporation of London would be conducting its undertaking in a way whereby those who could be affected were exposed to risks to health or safety.
20. If one then considers whether the undertaking can reasonably practicably be conducted in a way to ensure that there is not exposure to those risks the answer must be that the undertaking can be so conducted by the expedient of managing the opening hours so that the enhanced risk occasioned by the absence of lifeguards is not present."
The position of the HSE
"It is our view that the control and management of the ponds forms part of the undertaking of the CoL and therefore Section 3 HSWA applies. The proposal from the United Swimmers Association for swimming in the ponds would seem to be the basis for a private use/hire agreement between the CoL and the swimming groups. Such private use/hire would continue to come within the scope of Section 3 HSWA because there would be an expectation that the ponds would be maintained by the CoL in a condition suitable to allow swimming, and CoL would need to take action if the ponds became unsafe for public use. However, the risks to members of the swimming group could be controlled by agreement as discussed below.
I would distinguish private use/hire from so-called "self-regulated" swimming in which participants choose to swim in unregulated open tracts of water or the sea, and to fully accept the risks of doing so. In the case of the ponds on the Heath swimming would still take place subject to the control of the CoL through the terms of an agreement.
A checklist of the points for inclusion in any agreement/contract is given at Appendix 5 of our guidance Managing health and safety in swimming pools. Agreement will need to be reached over lifeguarding. Paragraphs 186 to 189 suggest that lifeguards may not be needed when the pool is hired by a club whose members are all strong swimmers. This would allow use of a pond without the need for the CoL to provide lifeguards, but there are other matters that would need to be taken into account when deciding if poolside supervision is necessary as recommended in paragraph 186 and figure 3 on page 66 of the guidance. I would point out that our guidance recognises that constant poolside supervision provides the best assurance of swimmers' safety but that it is not a specific requirement under Section 3 HSWA.
What HSE cannot do is provide any kind of indemnity to the CoL in terms of the conduct of this undertaking. The duty on CoL is non-delegable and is only subject to the defence of reasonable practicability. It is impossible to predict all of the circumstances which might arise, and in the event of an incident leading to an investigation by HSE it might have to be left to a court to determine if there had been a breach of the law. In determining whether or not there had been a breach an important consideration is likely to be the existence and operation of an agreement in terms such as those indicated above."
(a) It did not formally accept the Claimants' position that if the Corporation were to commit them to swim unsupervised in the mixed bathing pond, the Corporation would have, as a matter of law, no exposure to any risk of prosecution for breach of section 3 of the Act.
(b) "If the Claimants were successful , whether the HSE would be barred from prosecuting would depend upon the precise terms of the judgement, or declaration if any, made by the Court."
(c) The HSE did not formally accept that if the Corporation were to permit unsupervised swimming, it would not constitute an "employer conducting an undertaking" within the meaning of section 3."
"HSE has made its position clear regarding the application and scope of HSWA, and is content for the Court to interpret the legislation, as it deems appropriate. Other than re-stating the law and guidance, as set out in correspondence HSE does not consider that it would have any material contribution to make to the proceedings, and as such, is mindful of the need to avoid the unnecessary public expense involved in being represented at the hearing. No disrespect is intended to the Court."
Should the Court interpret section 3?
Section 3 of the 1974 Act
"3.(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.
(2) (Imposes a similar duty on self-employed persons.)
(3) In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety."
The parties' contentions
(a) Section 3 is a penal provision, and as such is to be restrictively construed; it is to be given a "contextual and purposive construction", and construed so as to respect "the individualist values of the common law".
(b) Section 3 applies only to a risk created by the employer's conduct of his undertaking. It follows that, on its proper interpretation, it applies to activities carried out by an employer, and so does not apply to a risk created by the employer's premises as such. The grant of access to the Mixed Pond to self-regulated swimmers would not constitute "the conduct of (the Corporation's) undertaking".
(c) Any risk created by members of the Club swimming in the Pond would be the result of their deciding to do so with full knowledge of the risks involved. Their exposure to such risks would not have been caused by the conduct of the Corporation's undertaking, but by their own action. The requirement in section 3 that the exposure to risk must be "thereby", i.e. by the conduct of its undertaking, cannot be satisfied.
(d) In determining whether an employer has established the reasonably practicable defence, the value of the activity it has permitted must be taken into account, and not solely the cost or physical difficulty of eliminating the risk inherent in that activity. In the instant case, in relying on paragraph 20 of Mr Straker's advice, the Corporation had taken into account only the available means of eliminating the risk, and had not weighed against that the value of permitting unregulated swimming.
(a) A restrictive interpretation of section 3 is inappropriate. A purposive interpretation is appropriate.
(b) Section 3 is not limited to activities, but applies equally to risks created by an employer's premises.
(c) The risks inherent in unsupervised swimming would be created by the Corporation's grant of access. The Corporation would therefore be liable for the creation of those risks under section 3.
(d) The only matters to be taken into account in determining whether an employer has established the reasonably practicable test are the costs and physical difficulty of a relevant precaution.
Principles applicable to the interpretation of the 1974 Act
Tomlinson v Congleton Borough Council
"(1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine
(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and
(b) if so, what that duty is.
(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if
(a) he is aware of the danger or has reasonable grounds to believe that it exists;
(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and
(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
(4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.
(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.
(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).
"The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."
"Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity which had inherent risk. The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case can the risk be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity. In the present case, Mr Tomlinson knew the lake well and even if he had not, the judge's finding was that it contained no dangers which one would not have expected. So the only risk arose out of what he chose to do and not out of the state of the premises."
In addition, he held that, if there had been a risk arising from the state of the premises, it was not one that required the defendants to do anything about it. What was suggested was that they should have made it physically impossible to swim in the lake. To impose a duty to do this was to ignore the social value of the activity that gave rise to the risk. Even when the question of the duty owed by the defendants to lawful visitors was considered, they owed no duty to prevent swimming in the lake, because of the social value of swimming and because:
"45 it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so."
"46 there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious.
47 It is of course understandable that organisations like the Royal Society for the Prevention of Accidents should favour policies which require people to be prevented from taking risks. Their function is to prevent accidents and that is one way of doing so. But they do not have to consider the cost, not only in money but also in deprivation of liberty, which such restrictions entail. The courts will naturally respect the technical expertise of such organisations in drawing attention to what can be done to prevent accidents. But the balance between risk on the one hand and individual autonomy on the other is not a matter of expert opinion. It is a judgment which the courts must make and which in England reflects the individualist values of the common law.
50 My Lords, for these reasons I consider that even if swimming had not been prohibited and the council had owed a duty under section 2(2) of the 1957 Act, that duty would not have required them to take any steps to prevent Mr Tomlinson from diving or warning him against dangers which were perfectly obvious. If that is the case, then plainly there can have been no duty under the 1984 Act. The risk was not one against which he was entitled under section 1(3)(c) to protection."
"81 The fourth point, one to which I know that your Lordships attach importance, is the fact that it is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coastline and other beauty spots to be lined with warning notices? Does the law require that attractive waterside picnic spots be destroyed because of a few foolhardy individuals who choose to ignore warning notices and indulge in activities dangerous only to themselves? The answer to all these questions is, of course, no. But this is the road down which your Lordships, like other courts before, have been invited to travel and which the councils in the present case found so inviting. In truth, the arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen. "
"92. The council's duty under the 1957 Act to its visitors was a duty "to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted ... to be there": section 2(2). The purpose for which visitors were invited or permitted to be in the park was general recreation. This included paddling and playing about in the water. The proposition that in order to discharge their 1957 Act duty to visitors the council had to discourage them from any entry into the water and, in effect, to prevent the paddling and playing about that so many had for so long enjoyed is, in my opinion, for the reasons so cogently expressed by Lord Hoffmann, wholly unacceptable. There was no breach by the council of its 1957 Act duty. The question whether it owed any 1984 Act duty did not, in my opinion, arise. If, wrongly in my opinion, the 1984 Act were to be regarded as applicable, the case would be a fortiori."
And he concluded his speech, at :
" And why should the council be discouraged by the law of tort from providing facilities for young men and young women to enjoy themselves in this way? Of course there is some risk of accidents arising out of the joie-de-vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone."
"Crime and tort of course overlap. Many torts are also crimes, sometimes with the same names and with similar elements (for example, assault and battery) and sometimes a civil action in tort is deduced from the existence of a statute creating a criminal offence. The more serious, "traditional" criminal offences are likely to amount to torts provided there is a victim who has suffered damage but the scope of tort is broader: it is broadly true to say that causing physical damage by negligence is always tortuous, but it is criminal only in certain circumstances or conditions."
The conduct of the employer's undertaking
"An Act to make further provision for securing the health, safety and welfare of persons at work, for protecting others against risks to health or safety in connection with the activities of persons at work, for controlling the keeping and use and preventing the unlawful acquisition, possession and use of dangerous substances, ..."
"1.(1) The provisions of this Part shall have effect with a view to
(a) securing the health, safety and welfare of persons at work;
(b) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work;
Again, the italicised words support the Claimants' submission. However, as Mr Straker pointed out, section 1(1) must be construed with subsection (3):
"(3) For the purposes of this Part risks arising out of or in connection with the activities of persons at work shall be treated as including risks attributable to the manner of conducting an undertaking, the plant or substances used for the purposes of an undertaking and the condition of premises so used or any part of them."
"4.(1) This section has effect for imposing on persons duties in relation to those who
(a) are not their employees; but
(b) use non-domestic premises made available to them as a place of work or as a place where they may use plant or substances provided for their use there,
and applies to premises so made available and other non-domestic premises used in connection with them.
(2) It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access thereto or egress therefrom to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health."
Would the swimmers be exposed to risks to their health and safety by the conduct of the Corporation's undertaking?
"So the only risk arose out of what he chose to do and not out of the state of the premises."
"An expanse of water, be it a lake, pond, river or the sea, does not normally pose any danger to a person on land. If a trespasser deliberately enters the water to swim, then the trespasser chooses to indulge in an activity which carries a degree of inherent risk. If the trespasser gets cramped or becomes exhausted and drowns, it cannot properly be said that this tragedy is attributable to the 'state of the premises'."
Referring to the decision of the Court of Appeal in Tomlinson, Lord Phillips said:
"It seems to me that Mr Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous condition."
"In one sense, but for the negligence of the pursuer (if she was negligent) in attempting to cross the road, she would not have been struck, and as a matter simply of causation, the facts formed a necessary element in the final result, since without them no accident could have occurred. The decision, however, of the case must turn not simply on causation, but on responsibility; the plaintiff's negligence may be what is often called causa sine qua non, yet as regards responsibility it becomes merely evidential or matter of narrative, if the defendant acting reasonably could and ought to have avoided the collision."
"The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility."
While the situations envisaged by the authors differ from the present, the citation confirms the applicability of the principle in criminal law. In criminal law, as in other areas of the law, normally the "but for" test is a necessary test for responsibility, but it is not a sufficient test.
Is the social value of swimming a relevant factor in determining what is reasonably practicable?
MR JUSTICE STANLEY BURNTON: My judgment has been distributed in draft. I am very grateful to counsel for the many corrections of numerous inaccuracies. The conclusions I have reached are set out in the judgment, copies of which are now available to the parties, the public and the press. I understand that the parties would prefer to have some time before an order is determined.
MR COPPEL: My Lord, it seems to the parties that there are three matters that can be dealt with very briefly today: first of all the terms of the declaration. Quite obviously they are of critical importance to the Corporation, but possibly of even greater importance to the HSE -- although it has chosen not to attend -- of wider importance to the HSE. The Corporation has prepared a form of words which I can read out to the court now. But we would propose to circulate it to my learned friend and the HSE to see whether agreement can be reached, and then put it to your Lordship to see if your Lordship is happy that it reflects what is in the judgment itself. So, in relation to that, what we would propose, if it is convenient to your Lordship, is to return in about a fortnight's time on whatever date is convenient to your Lordship so that that finalised form of words of the declaration can be agreed.
Secondly, my Lord, the issue of permission to appeal, and again the Corporation asks here that this be deferred until we return to you on the terms of the declaration. Again, my Lord, it is of critical importance that the HSE be given a proper opportunity to indicate whether they take issue with the judgment, and if so on what basis.
MR JUSTICE STANLEY BURNTON: I see the point.
MR COPPEL: It is the role of the HSE, which is important here, rather than the Corporation and any suggestion that it might otherwise be colluding with the claimants in this matter.
Thirdly, my Lord, the balance of the hearing, which might have got a little bit forgotten in all the excitement over the issue of criminality. Your Lordship will remember that the gist of the claim against the Corporation as such was that the decision to refuse the swimmers permission was an irrational or flawed decision, and they said that it was irrational and flawed on the Corporation's misunderstanding of the criminal law. Of course, it was that preliminary issue which had to be resolved, as it happens without the benefit of the HSE.
It is not clear to the Corporation at any rate whether the swimmers intend now to persist with that element of the claim because, as was indicated by Mr Beloff during the course of the hearing, it may be that now the issue of criminality has been resolved, that the dispute -- in fact the only real dispute against the Corporation as such need not proceed. But again, my Lord, it may be that that issue can be finally resolved when we come back before you in a fortnight or so.
MR JUSTICE STANLEY BURNTON: Thank you. Mr Herberg?
MR HERBERG: My Lord, I am very grateful to your Lordship, as I suspect are the residents of Hampstead. My Lord, I do not think there is anything between the parties on the three matters to which my learned friend has referred. It is obviously sensible for a declaration to await a future occasion. The HSE will of course want to see that, although we do not concede -- if they are to have second thoughts about the stance they have taken in these proceedings, there is now time to reopen the issue. That, of course, is a hypothetical position.
In relation to the balance of the proceedings, can I merely say that the preliminary issue was proposed in the first place because it was hoped that it would provide a route to shorten the proceedings, and given the result we very much hope that that will be the case. But that will be resolved, we hope, on the resumed hearing. A period of two weeks we would also hope should be sufficient to resolve all those outstanding matters.
MR JUSTICE STANLEY BURNTON: Do you want me to fix a date now or through the usual channels, which I think I would prefer because I would like to know what my own commitments are before I fix a date.
MR COPPEL: My Lord, the latter may be more convenient because I did not bring my diary with me.
MR HERBERG: We are content with that.
MR JUSTICE STANLEY BURNTON: The other matter is that, until the HSE has seen the judgment, and they have not yet, you are not in a position to know and I am not in a position to know how long the next hearing will take. So it seems to me better to adjourn this matter to the first suitable date convenient to the parties after two weeks.
MR COPPEL: I am grateful, my Lord.
MR JUSTICE STANLEY BURNTON: Thank you both, very much.