[2015] EWHC 273 (QB)
Case No: 9MA91650
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
Greater Manchester
M60 9DJ
Date: 13/02/2015
Before :
THE HONOURABLE MR JUSTICE BLAKE
------
Between :
ANNIE RACHEL WOODLAND (A PROTECTED PARTY REPRESENTED BY HER FATHER AND LITIGATION FRIEND, IAN WOODLAND) / Claimant- and -
DEBORAH MAXWELL
-and-
ESSEX COUNTY COUNCIL / Second Defendant
Third Defendant
------
------
Christopher Melton QC and Ian Little (instructed by Pannone ) for the Claimant
Stephen Miller QC and Richard Smith (instructed by DWF LLP) for the 2nd Defendant
Steven Ford QC and Kathryn Duff (Instructed by Essex Legal Services) for the 3rd Defendant.
Hearing dates: 26 January – Friday 30 January 2015
------
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
......
THE HONOURABLE MR JUSTICE BLAKEApproved Judgment / short title
The Honourable Mr Justice Blake:
Introduction
1. On 5 July 2000 at 10.45 am children from the Whitmore Junior School were attending their weekly swimming lesson held at the Gloucester Park pool Basildon. The children were divided into three groups that I will call beginners, intermediate and advanced. The beginner’s group was conducted in a learner pool away from the main pool. The intermediate and advanced groups had their lessons in the main pool. Annie Woodland, the claimant, was one of the children in the advanced group. She was 10 years old and the other members of her group were a similar age.
2. Shortly after she entered the water, Annie was observed by Paula Burlinson, the swimming teacher of the advanced group, floating vertically in the water on the left hand side of the pool (taking directions from an observer at the deep end facing the shallow end). Annie did not respond to questioning or a physical touch. Ms Burlinson shouted for assistance. Another of the swimming teachers, Zoe Dean, responded to this call and the two teachers lifted her out of the water. She was assessed to be still breathing and placed in the recovery position. A few moments later the pool manager, Frank Palmer, attended at the poolside. Annie’s breathing was seen to be erratic or fading. Mouth to mouth and cardio-pulmonary resuscitation was administered.
3. Someone from Mr Palmer’s office called the emergency services; the call was logged by the ambulance service as having been made at 10.54. The ambulance arrived at 10.57 and had left by 11.07, arriving at Basildon Hospital at 11.10. The claimant had suffered cardiac arrest and a serious brain injury caused through lack of oxygen. She has made a remarkable recovery but the episode has left serious brain injuries.
4. This is the trial of her claim that her injuries were caused as a result of negligence. I heard evidence from the following: for the claimant: Kayleigh Iyalla formerly Teeboon (and her parents), Ashleigh Staines, Katie Witham and Professor Perkins. I heard from Debbie Maxwell, Frank Palmer, Zoe Dean and Dr Pearson for the second defendant and Paula Burlinson and Susan Holt for the third defendant. Other statements were read. I will refer to Annie’s former classmates as children and identify them by their first names, although they are now grown women, some with families of their own and in Kayleigh Iyalla’s case pursuing a career as a primary school teacher.
The proceedings
5. There has been a complex procedural history that explains why it is nearly fifteen years after the accident that a court is determining the primary facts on which the negligence claim depends.
6. In 2001 all parties had different legal teams. A claim was instituted against the Swimming Teachers Association (STA). All of the teachers conducting or supervising the lessons on 5 July 2000 had been engaged by Beryl Stopford who was a former swimming teacher who ran an organisation called Direct Swimming Services (DSS). Mrs Stopford, Ms. Dean, Julie Martin (the teacher conducting the 10.45 class in the learner pool) and Debbie Maxwell (who was performing the role of lifeguard at the material time) were members of the STA. As it happens Paula Burlinson was not a member at this time, although Mrs Stopford thought she was. DSS had a contract with various schools in Basildon including Whitmore Junior School to supply swimming classes as part of the physical education curriculum. All the swimming teachers supplied by DSS were either currently or formerly employed by Basildon as swimming teachers and had familiarity with Basildon’s operating and emergency procedures. STA had no responsibility for the organisation of the lessons but provided insurance cover for its members.
7. Once the position was clarified, the claim was amended to name Mrs Stopford and Ms Maxwell as defendants. Paula Burlinson was never a defendant as she was not an STA member and not insured for this activity. At some point an admission of liability was made on behalf of some of the defendants, but when the claim was transferred to the present solicitors for Ms Maxwell, the matter was reinvestigated and a successful application was made to withdraw it.
8. These events are background only but explain why some draft witness statements were produced in 2001, and why a statement was made in April 2010 by Ms Sell-Peters, the second defendant’s solicitor, explaining the instructions she had received from Mrs Stopford and Ms Maxwell. An amended defence was filed on behalf of both of them. In late 2014 Mrs Stopford’s insurer decided that she was not covered for any negligence as an employer or provider of swimming teachers, and she was left without legal representation.
9. In the course of the proceedings the claimant had joined the local education authority, Essex County Council, as the third defendant on the basis that it owed the claimant a non-delegable duty to take care of her in school swimming lessons. This claim was struck out by the High Court and the decision was upheld by the Court of Appeal, but the Supreme Court reversed it in October 2013 [2013] UKSC 66. The claimant is thus able to sue the third defendant on the basis that either the second defendant, as lifeguard, or Paula Burlinson, as teacher, (or indeed both), failed to discharge the duty of care owed to her. In those circumstances, the claimant discontinued the claim against Mrs Stopford. The third defendant’s claim for a contribution against the first and second defendant was adjourned to a further hearing (if necessary) in the light of the court’s primary findings of fact.
Investigations
10. Within moments of the accident occurring, Frank Palmer had called all the swimming teachers on duty to his office to have a brief discussion as to what had happened and then asked them to make written statements that were typed up. The statements of the three swimming teachers are set out at Appendix A to this judgment.
11. The Health and Safety Executive (HSE) reviewed this material, and obtained some further statements from the teachers but not from Annie’s fellow pupils. A first report was produced making a number of recommendations.
12. Whitmore Junior School does not appear to have conducted an investigation of its own. Susan Holt, the head of Physical Education and the lead teacher who attended the swimming pool on 5 July, began to obtain information from the children as they were waiting to board the bus to return to school after the incident. On 7 July she wrote a letter recording information that she obtained from Ashleigh Staines (Appendix B).
13. Meanwhile, another pupil in the pool, Kayleigh Teeboon, told her parents what had happened at school when she returned home. Her parents were so concerned at what they heard that they invited her to write down her experience that night. She did so and produced a neater version of the same account the following day (Appendix C). She also prepared a detailed sketch plan of Annie’s whereabouts in the pool.
14. Other children also recorded what they remembered in the weeks and months after the accident. The children’s statements led to a further HSE review and a second report that reached more critical conclusions as to the safety procedures adopted. Unfortunately, if the first investigation was defective in that it did not take into account the views of the children, the second seems to have been conducted without exploring with the DSS teachers what the children were saying.
15. As a consequence of all this there are gaps in the evidential picture. There is no scaled plan of the pool (that was demolished in 2011). Each of the witnesses who gave evidence has had the disadvantage of recollecting events that happened within minutes many years ago.
The routine for the swimming lesson
16. The Gloucester Park pool was a conventionally shaped swimming pool with a deep end and a shallow end 33.3 metres long and 12.5 metres wide. Access to the main pool was through a passageway flanked by the changing rooms.
17. Debbie Maxwell, Zoe Dean and Paula Burlinson were all trained as swimming teachers and had extensive experience of taking lessons in this pool. Debbie Maxwell and Zoe Dean were, in addition, trained as lifeguards. The roles of swimming teacher in the main and learning pool and lifeguard rotated throughout the day, but Ms Burlinson never undertook lifeguard duties as she had no training in rescue and resuscitation.
18. Although the classes were billed as starting 15 minutes past and before the hour, the lessons would not start precisely at these times. The whistle had to be blown from the previous session. All the children had to leave the pool and be escorted away by their accompanying school teacher. The next class was waiting in an area by the shallow end while the pool was cleared. They were then placed in the charge of the DSS teacher, moved to the deep end, were briefed on the lesson and entered the water when instructed.
19. The children had been taught at the start of the term that they should not dive in, even if they had the skills to do so. They should only enter the water by jumping or lowering themselves in. Ms Burlinson’s class was using a double lane on the left of the pool, just over two metres in width. The pupils would line up in three to four lines. The plan that Kayleigh completed on the night of the incident showed four lines of pupils. There was little disagreement with its accuracy on that point. The pupils would then jump into the water in ‘waves’ swim to the end of the pool, exit, walk back to the deep end and then jump in for a second length. Each wave was separated by a suitable distance adjudged by the teacher. The pupils waited for her command to jump in. Ms Burlinson told the court that once the first two waves were in the pool it was her practice to walk from the deep end along the left hand side to a point approximately mid way down the pool between the five and six foot depth markers, where she could keep the whole class under observation. She would signal to the next wave to enter from this more distant position and the children would also know when it was safe to jump in by a marker on the pool indicating an appropriate distance. She said that she had another reason to move down the poolside that day which was to remonstrate with some pupils who had left the pool using steps at the side rather than swimming a full length.
20. From information supplied in 2000 by the head teacher, it seems that 50 pupils were swimming in the main pool that day, with three school teachers accompanying them Mrs Holt, Mrs Beecham and Mrs Tabbard, a supply teacher attending the school for the day. The role of the school staff was to supervise pupils in the changing room and on the pool side and to escort them to and from the pool. There was no information as to whether the groups were evenly divided between intermediate and advanced and there may have been between 20 and 30 pupils in Mrs Burlinson’s class.
21. Although the recommended ratios were one teacher for every 20 pupils, it was not suggested that it was negligent for each swimming teacher to have a larger class. There were two swimming teachers and one lifeguard to oversee the swimming and in addition there were the three school teachers in attendance at the pool side. However, the class size emphasises the importance of the lifeguard function as an independent observer.
22. Basildon’s Normal and Emergency Operating plan reached 21 editions and the version dating from 2010 was all that was available at trial. It is common ground that the same core safety procedures were found in the earlier edition applicable in July 2000. Paragraph 3.1 provides:
“Within the overall safety procedures for any complex that incorporates a swimming pool the role of the lifeguard is paramount. It is this person’s observation, awareness, vigilance, control, training, responses and risk appreciation that ensures a safe leisure environment.”
23. There were several lifeguard chairs around the main pool. It is common ground amongst the experts that generally the best place for a lifeguard to observe swimmers is from the raised height of a chair. This did not mean that a lifeguard must always stay in the chair. Problems with sun glare on the surface of the pool, water quality or blind spots may make it reasonable to observe from elsewhere, including the sides of the pool.