Hampstead Heath Winter Swimming Club & Anor v Corporation of London & Anor

Section 3 of the Health and Safety at Work etc Act 1974 does not make an employer criminally responsible for every risk associated with premises or an activity it permits. Where adults knowingly and freely choose an activity involving inherent risks, and the premises contain no hidden danger, those risks may be attributable to the users’ decision rather than to the conduct of the employer’s undertaking. The reasonably practicable defence arises only if the undertaking has created a relevant risk.

The claimants sought judicial review of the Corporation of London’s refusal to permit adult members of a swimming club to swim unsupervised in the Mixed Pond on Hampstead Heath during winter hours. The Corporation had acted on advice that permitting the arrangement could expose it and its officers to prosecution under section 3 of the Health and Safety at Work etc Act 1974.

The Health and Safety Executive was joined but did not appear. The issues were whether the court should determine the hypothetical application of a criminal statute, whether the proposed permission would expose swimmers to risks by the conduct of the Corporation’s undertaking, and whether the social value of swimming was relevant to reasonable practicability.

1. Determination of the legal issue. Although courts should exercise caution when asked to decide whether hypothetical conduct may infringe the criminal law, the issue arose genuinely in civil litigation. The proceedings were not collusive, and the HSE had an opportunity to participate. It was therefore appropriate to rule on section 3.
2. Construction of section 3. The Corporation’s ownership, management and regulation of the ponds formed part of its undertaking. Section 1(3) included risks attributable to the condition of premises used for an undertaking. Section 4 did not displace section 3; overlap between the provisions was contemplated by the wide wording of section 3.
3. Attribution of risk. The proposed swimmers were adults, aware of the risks, and would choose freely to swim without supervision in a pond with no hidden dangers. Although the permission and the swimmers’ decisions were factual causes of any accident, the legally relevant responsibility lay with the swimmers’ voluntary decisions. Applying the approach in Tomlinson v Congleton Borough Council, the risks were not, for section 3 purposes, risks to which the swimmers were exposed by the conduct of the Corporation’s undertaking.
4. Reasonably practicable precautions. The decision in Austin Rover Group Ltd v H.M. Inspector of Factories remained authoritative on the relevant factors. That question did not arise because no relevant risk created by the undertaking had been established.
5. The resolution of 26 July 2004 was based on an error of law. Permission for the proposed swimming would not of itself expose the Corporation to prosecution under section 3. The precise declaration and remaining issues were adjourned for later determination.

First-instance judicial review proceedings. No earlier decision in the same litigation is stated.