R (Hampstead Heath Winter Swimming Club) v London Corporation

The claim concerned the Corporation of London’s refusal to permit self-regulated early-morning winter swimming in the Mixed Pond on the ground that to permit it would expose the Corporation to criminal liability under section 3 of the Health and Safety at Work etc Act 1974. The court held that section 3 applies to an employer’s conduct of its undertaking but, applying the principles in Tomlinson v Congleton Borough Council, where competent adults freely choose to undertake an activity with obvious risk the exposure to risk is attributable to their choice and not to the employer’s permission. Consequently, the Corporation’s resolution refusing permission was based on an error of law: the grant of permission to adult, informed self-regulated swimmers would not of itself render the Corporation liable to prosecution under section 3. The court further found that, because no relevant risk is thereby created by the conduct of the undertaking, the reasonably practicable enquiry under section 3 does not arise.

Background and parties

The claimants were an unincorporated winter swimming club and its secretary who sought judicial review of the Corporation of London’s decision (by minute of 26 July 2004) refusing to permit self-regulated early-morning swimming in the Mixed Pond on Hampstead Heath. The Corporation had acted after legal advice that permitting such swimming would risk prosecution under section 3 of the Health and Safety at Work etc Act 1974. The Health and Safety Executive was joined as an interested party but chose not to appear.

Nature of the claim and relief sought

• The claimants sought judicial review of the Corporation’s decision on the basis that it rested on an erroneous view of the law: in particular that permitting the club to swim unsupervised would expose the Corporation to criminal liability under section 3 HSWA.

Issues framed by the court

• Whether section 3 HSWA can be engaged by an employer merely permitting adult, competent members of the public to undertake a recreational activity on its premises.
• Whether the exposure to risk in those circumstances is “by” the conduct of the employer’s undertaking.
• Whether the reasonably practicable enquiry under section 3 requires weighing the social value of the activity.
• Whether it was appropriate for the court to determine the meaning of a criminal statute without the HSE being represented.

Decision and reasoning

The court accepted the need for caution in deciding the meaning of a criminal provision without the prosecuting authority but concluded it was appropriate because the HSE had had an opportunity to participate and expressly left the interpretation to the court. The judgment treated section 3 as broadly worded and applicable to local authorities. However, applying the principle in Tomlinson v Congleton Borough Council, the court held that where an adult swimmer, knowing the obvious risks, freely chooses to swim in a pond that has no hidden dangers, the resultant risk arises from the swimmer’s decision and not from the employer’s conduct of its undertaking. Consequently, permitting such swimming does not create a relevant risk "by" the conduct of the undertaking for the purposes of section 3 and so the reasonably practicable defence or consideration does not arise. The court therefore concluded that the Corporation’s resolution was founded on a legal error.

Subsidiary findings

• Section 4 HSWA (duties in relation to non-domestic premises) did not, on the facts, alter the conclusion; the swimmers did not use the pond as a place of work.
• The social value and individual autonomy underpinning Tomlinson were material to the legal analysis of responsibility for risk.

The claim is allowed. The court held that the Corporation’s decision to refuse permission was based on a mistaken view that permitting adult, competent swimmers to swim unsupervised in the Mixed Pond would of itself expose the Corporation to criminal liability under section 3 of the Health and Safety at Work etc Act 1974. Applying Tomlinson, the court concluded that the risk in those circumstances arises from the swimmers' voluntary choice rather than from the conduct of the employer’s undertaking, so section 3 is not engaged and the reasonably practicable enquiry does not arise.