I REFERRED in an article that I wrote last year, to a negligence case in which a local authority which had outsourced its leisure centre to a private contractor was held not to be liable for a serious injury to a child injured during a swimming lesson.

I recently came across another case with equally tragic circumstances and in which the legal outcome was different.

This case was taken against Northampton Borough Council and involved a child who when aged six, visited the local authority’s swimming pool with his father and brothers. The child could not swim. The child was found lying at the bottom of the pool by another pool user, and the severity of the brain damage suffered by the child indicated that he had been submerged for at least two minutes 40 seconds. The claimant brought a claim for damages against the local authority alleging it was liable for the negligence of the lifeguards.

This case differs from the previous case in that the lifeguards were employed by the local authority. The local authority had set out substantial guidance on lifeguard duties.

There were four lifeguards on duty and they were rotated every 15-20 minutes. CCTV footage showed the child climbing out of the pool and becoming separated from the family group. He then sat on the edge of the pool and lowered himself into the water, when no adult or other child was present. About three minutes later, another pool user found the little boy lying on the bottom of the pool and a member of the public lifted him out of the water.

Resuscitation attempts were made, but sadly, he suffered significant brain damage.

The case was taken against the council on the basis that their employees, the lifeguards, had failed to supervise the pool and exercise appropriate vigilance over the boy at all times. There is an internationally recognised practice, commonly known as the 10:20 System. According to this, a pool should be divided into surveillance zones that are constantly watched. Lifeguards must scan their zone of supervision every 10 seconds and be close enough to get to an incident within 20 seconds.

The footage showed that the boy was never more than about seven metres from two lifeguards and he was also within the zone of two other lifeguards stationed in raised positions. At least two pairs of eyes should have been scanning him every 10 seconds.

It was clear that the boy should have been picked up as a child of interest, particularly as he was on his own. The lifeguards could not assume that he was a swimmer or under parental supervision. The court held that they had breached their duty of care.

It was necessary for the family to show that there was a causal link between that failure and the injuries suffered by the boy. The evidence indicated that the brain damage could have been avoided, if the claimant had been rescued quickly enough.

Another point of interest in this case is that the local authority itself issued proceedings against the boy’s father for failing to exercise proper parental care. The father had no insurance and no assets and that claim for the time being was discontinued.