Duty to child

R v Upper Bay Ltd [2010] EWCA Crim 495, TLR 28 April

Although this decision was in the criminal division of the Court of Appeal it concerned the duty to ensure that persons are not exposed to risks to health or safety contrary to ss3(1) and 33(1)(a) of the Health & Safety at Work etc Act 1974. A boy aged seven went with his father and younger brother to an indoor swimming pool operated by Upper Bay. There were notices at the pool that children under eight years old were to be accompanied by an adult. The boy could not swim and was not wearing armbands. He went to a part of the pool near the deep end where he was seen under water and not moving by a member of the public who lifted him out. Emergency treatment was administered, he was taken to hospital and although he survived he suffered severe brain damage. The defendant, as an employer conducting an undertaking, mainly the swimming pool, was charged with failing in its duty to the child. The defendant contended there was no case to answer because the accident had resulted from inadequate supervision by the boy’s father and therefore it was not the conduct of the undertaking which had exposed the boy to risk. It argued there was no concurrent duty: The duties were consecutive.