Rxdx v Northampton Borough Council & Anr

LORD JUSTICE JACKSON: This is a renewed application for permission to appeal to the Court of Appeal. The facts giving rise to this application are as follows: the claimant at the material time was a young boy aged 6 and a half. On 17 February 2002, he went to a swimming pool in the company of his father and three older brothers.

The father was supervising all four children but on the evidence it is quite clear that he was not supervising the claimant, the youngest of the four children, properly.

The swimming pool to which the claimant and his family went was a public swimming pool owned by the defendant Local Authority, to whom I shall refer as "the Council". The council employed four lifeguards, two of whom are relevant to this case; a plan which has been put before the court and helpfully explained to me by Ms Rodway, shows that the pool is in the form of a large "U", with a semi-circle on the upper left corner which was a particularly shallow end for smaller children to play in.

It can be seen from the CCTV footage, taken on 17 February, that the father of the four boys spent some time with the claimant but at 1.43pm he was not close to the claimant. The last time that the claimant is seen on the CCTV is at 1.43pm when he is climbing into the water at the top end of the "U" of the pool in a shallow area.

Three minutes later, at 1.46, swimmers in the pool found the claimant lying unconscious at the bottom of the pool. That section of the pool in which the claimant was found was 920mm in depth, so it was an area where the claimant, who was about 1.2 metres tall, would not have been out of his depth.

The swimmers who found the claimant lying unconscious at the bottom of the pool hastily scooped him up and took him to a lifeguard. Resuscitation commenced, an ambulance was called, paramedics took the claimant to hospital. The claimant survived but he suffered permanent brain damage as a result of lack of oxygen.

It is clear that between 1.43, when the claimant was last seen on the CCTV footage and 1.46, when he was found lying at the bottom of the pool, there must have been some form of accident or mishap. Whether he slipped and fell or tried to swim and failed is unknown.

The claimant has brought proceedings against the Council alleging that the lifeguards who were on duty at the pool employed by the council were negligent. The Council has brought third party proceedings against the father. The father has put in no defence to those third party proceedings but he is a person of no means and no insurance, so no judgment has been entered against the father and it is not suggested that, absent some unexpected development, any judgment will ever be sought against the father.

The case advanced against the defendant Council is that the lifeguards who it employed failed to exercise proper vigilance.

There was a preliminary issue trial before Sir Colin Mackay, sitting as a judge of the Queen's Bench Division. In May 2015, the judge handed down his reserve judgment on 11 June 2015. The preliminary issues before the judge were the questions of liability and causation.

The judge found that two lifeguards were within 7 or 8 metres of where the claimant was found. One lifeguard was on a seat at the top of what one might call the "U" shape of the pool, the other lifeguard was on a seat on the left-hand side of the pool. Both seats were raised some way above the floor in the conventional way. The written statements of the lifeguards, who were not called to give evidence, were to the effect that they did not notice anything untoward.

The judge concluded that the lifeguards were negligent and that if they had been suitably vigilant they would have kept the claimant under observation, they would have seen the mishap as soon as it occurred, and would have rescued him before he suffered permanent brain damage. The medical evidence suggested that the claimant was probably submerged for more than 2 minutes and 40 seconds.

In the course of his judgment, the judge concluded that the lifeguards, in scanning the activities in the pool, should have identified the claimant as a child of interest, they should have continued to watch him until they were satisfied that there was no problem. They did not do this. The judge held that the lifeguards should have spotted that the claimant was a child at risk and they were negligent in failing to do so. That forms a key part of his finding on liability.

Ms Susan Rodway QC, who appears today on behalf of the Council, submits that the judge set the standard too high and imposed too heavy a burden on this public authority. Ms Rodway makes the point that there were a large number of children playing in the pool; there were large numbers of adults around them; there were at all times adults close to the claimant, and it was not obvious to the lifeguards or to any observer at the pool that none of the adults close to the claimant were responsible for supervising him.

The claimant's father knew, as was the case, that the claimant could not swim but, says Ms Rodway, this would not have been obvious to the lifeguards. Normally where a child who cannot swim is taken to a swimming pool, the child would be wearing buoyancy aids of some form attached to his arm or his body to ensure that the child would float. The claimant was wearing no such protection. There was nothing, says Ms Rodway, to alert the lifeguards to the fact that this child was at risk.

Therefore, submits Ms Rodway, the judge fell into error in paragraphs 33, 34 and 35 of his judgment where he sets out the kernel of his reasoning.

Ms Rodway relies upon a number of concessions made by the expert witness for the claimant in the course of cross-examination. Those concessions, which I will not read out, are set out in paragraph 18 of her skeleton argument.

The claimant, the respondent to the proposed appeal, has lodged a respondent's statement pursuant to the provisions of practice direction 52C. The respondent makes the point that this case turned on issues of fact, the judge was a judge of great experience, the judge heard oral evidence over several days and there is no real prospect that the Court of Appeal will overturn what the claimant contends to be findings of fact.

I see the force of those submissions. On the other hand, Ms Rodway has persuaded me, contrary to my inclination when I first looked at the papers, that there is a very respectable argument to the effect that the judge did set the standard too high and Ms Rodway's points, to the effect that the claimant was not obviously a child at risk, might succeed at the hearing of this appeal.

I am certainly not saying that this appeal will succeed but it has a sufficient prospect of success to warrant the grant of permission. I do not propose to limit the grounds of appeal which may be pursued, it seems to me that having decided in principle that there should be permission to appeal, this appeal should be permitted to go forward on all of the proposed grounds. I estimate the length of the hearing at one day. I will say one day, two judges, one of whom may be a High Court judge. Costs in the appeal, I think that is right. Thank you very much for your help.