Upper Bay Ltd, R v

Under section 3(1) of the Health and Safety at Work etc Act 1974, an operator’s duty to conduct its undertaking so far as reasonably practicable without exposing non-employees to risk is non-delegable. A parent’s duty to supervise a child and the operator’s statutory duty are distinct and concurrent. Parental negligence therefore does not itself answer an alleged breach by the operator, although it may bear on what precautions were reasonably practicable.

The statutory duty does not guarantee safety. A swimming-pool operator may expect responsible adult supervision, but must also make reasonable provision for the foreseeable fact that young children may become separated from adults. A breach of the operator’s own safety policy is not conclusive of criminal liability, but may properly be considered with the other evidence by the jury.

Upper Bay Ltd operated an indoor swimming pool. A seven-year-old non-swimmer, Chad Mole, nearly drowned after reaching a deep area of the pool while visiting with his father. He survived with catastrophic brain injury.

At Cardiff Crown Court, the company was convicted on 18 June 2008 of an offence contrary to sections 3(1) and 33(1)(a) of the Health and Safety at Work etc Act 1974 and was fined £150,000 on 9 July 2009. Its application for leave to appeal against conviction was referred to the full Court of Appeal.

The company contended that the father’s inadequate supervision meant that it owed no relevant duty, or that there was no case to answer. It also challenged aspects of the summing-up. The central issue was whether the evidence permitted a jury to find a breach of the company’s statutory duty despite the father’s negligence.

1. Application refused. There was no arguable basis for holding that the conviction was unsafe. The court ordered the applicant to pay the respondent’s agreed costs of £24,000.
2. Section 3(1) of the Health and Safety at Work etc Act 1974 required the applicant to conduct its undertaking so that, so far as reasonably practicable, users of its facilities were not exposed to risks to health or safety arising from the running and management of the pool. The duty was not absolute and did not require the applicant to guarantee that no child could drown.
3. The statutory duty was non-delegable. The father’s responsibility to supervise his child was a different, concurrent duty. His failures to provide buoyancy aids and to supervise the child contributed to the accident, but could not exonerate the applicant from potential liability under the Act. They were relevant to the practical question of what steps were reasonably practicable for the applicant.
4. The applicant could reasonably expect a young child to be supervised by a responsible adult. Nevertheless, it had to recognise and anticipate that children may become detached even from close adult supervision. Its own policy for dealing with unaccompanied children under eight reflected that foreseeable risk. On the evidence of inadequate observation of the deep end and of a lifeguard’s apparent failure to follow that policy, the question whether the applicant had breached its duty was plainly for the jury. To withdraw the case would have usurped the jury’s function.
5. The summing-up was fair and legally accurate. The judge’s suggested factual questions about the child’s movements, the lifeguard’s conduct, and the subsequent lack of observation were legitimate matters for the jury. Non-compliance with the company’s safety policy was not definitive of criminal liability, but it was relevant evidence.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 495, refused the company’s application for leave to appeal against conviction and made an agreed costs order.
• Crown Court at Cardiff: Convicted Upper Bay Ltd on 18 June 2008 and imposed a fine of £150,000 on 9 July 2009.