R (Hampstead Heath Winter Swimming Club and Another) v The Coporation of London and Another
| Jurisdiction | England & Wales |
| Judgment Date | 26 April 2005 |
| Neutral Citation | [2005] EWHC 713 (Admin) |
| Date | 26 April 2005 |
| Court | Queen's Bench Division (Administrative Court) |
Health and safety - Employer's liability - Conduct of undertaking - Local authority managing ponds for public swimming - Ponds supervised by lifeguards during normal opening hours - Swimmers wishing to use ponds in early morning when unsupervised by lifeguards - Whether consequent risk to health and safety arising from conduct of undertaking by local authority - Whether local authority liable to prosecution -
The Corporation of London had responsibility for the management of Hampstead Heath and its three bathing ponds and lido. The ponds had been excavated as reservoirs but had long been used for swimming. One was reserved for women, another for men and a third was mixed. While the ponds were open for general public access for swimming they were supervised by lifeguards. The corporation changed the opening hours of the ladies' and men's ponds so that there was no longer provision of swimming in winter before 7.15 a m. The mixed pond had not been open at all in winter. Thus a group of swimmers who had been able to swim in winter before the beginning of the working day were no longer able to do so. The swimmers formed a club and proposed that members should be allowed to swim early in the morning in the mixed pond without lifeguards if the club met certain rules. These were that only adults who were strong swimmers and of sound mind could join, and that members would sign a declaration that they understood the risks of swimming and were habituated to cold water swimming. Solitary swimming and swimming in bad light would be precluded. Each member would indemnify the corporation against any liability for personal injury. It was common ground that there were no hidden dangers in the mixed pond. The corporation declined to permit swimming on these terms because, even though its position as to civil liability might be secure, it considered that it would be vulnerable to prosecution under section 3 of the Health and Safety at Work etc Act 1974F1 if harm befell the swimmers. The club and its secretary believed that the corporation would not be liable to prosecution and claimed judicial review. The Health and Safety Executive, the body responsible for prosecutions under section 3 of the 1974 Act, was joined as a party but did not appear or make representations at the hearing.
On the claim for judicial review—
Held, allowing the claim, (1) that the court should exercise caution wherever it was asked to decide whether hypothetical acts might infringe the criminal law, especially where the decision was to be made without the benefit of the representation of the body responsible for enforcing that law; that the issue as to the effect of section 3 of the 1974 Act, though raised by a third party which was not itself the party fearing prosecution, was a genuine issue arising in civil litigation; and that since there was no other means of testing the correctness of the legal advice on the basis of which the corporation had made the impugned decision affecting the claimants, it was appropriate for the court to give a ruling on the meaning and effect of section 3 (post, paras 23–25).
(2) That the risks entailed in swimming in ponds managed by a public corporation were not merely a result of the existence of the ponds but arose out of or in connection with the activities of persons at work for the purposes of section 1 of the 1974 Act; and that the corporation was therefore correct to consider that their regulation of admission to the ponds constituted the conduct of an undertaking within the meaning of section 3 (post, paras 48, 52, 55).
(3) That if an adult swimmer with knowledge of the risks of swimming chose to swim unsupervised in a pond that had no hidden dangers, the risks he incurred were the result of his decision and not of the permission given to him to swim; and that, therefore, those risks were not the result of the conduct by the employer of his undertaking and the employer was not liable to be convicted of an offence under section 3 of the 1974 Act (post, paras 63, 69).
The following cases are referred to in the judgment:
Attorney General v Prince Ernest Augustus of Hanover [
Austin Rover Group Ltd v HM Inspector of Factories [
British Railways Board v Herrington [
Darby v National Trust
Dickenson v Fletcher (
Donoghue v Folkestone Properties Ltd
Francis v Yiewsley and West Drayton Urban District Council [
M'Lean v Bell (
Norris v W Moss & Sons Ltd [
R v Associated Octel Ltd [
R v Board of Trustees of the Science Museum [
R v British Steel plc [
R v Mara [
R (Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department intervening)
Ratcliff v McConnell [
Stapley v Gypsum Mines Ltd [
Tomlinson v Congleton Borough Council
Weld-Blundell v Stephens [
The following additional cases were cited in argument:
Inland Revenue Comrs v McGuckian [
Moualem v Carlisle City Council (
R v Board of Trustees of the Science Museum [
R v Rhône-Poulenc Rorer Ltd [
Sterling-Winthrop Group Ltd v Allan
CLAIM for judicial review
By a claim form dated 26 October 2004 the claimants, Hampstead Heath Winter Swimming Club and Marc Sandford Hutchinson, applied for judicial review of the decision of the Corporation of London (made by its Hampstead Heath Management Committee) on 26 July 2004 to refuse permission for self-regulated swimming at Hampstead mixed pond during winter early mornings. The Health and Safety Executive was joined as an interested party, although it declined to file an acknowledgement of service and took no part in the proceedings.
The grounds for the application were that the corporation would not be involved in the conduct of an undertaking in allowing swimmers to have access to the pond, that the swimmers, as ordinary members of the public, were not persons not in the employer's employment and were not within the Act's remit, and that the risks entailed in swimming were not created by the conduct of the corporation's undertaking in its management of Hampstead Heath and its ponds.
The facts are stated in the judgment.
Michael Beloff QC and Javan Herberg for the claimants.
Timothy Straker QC and Philip Coppel for the defendant.
26 April. STANLEY BURNTON J handed down the following judgment.
Introduction
1 The open spaces of London are one of its glories. They are “the lungs of London”: they provide the city and its citizens with breathing space. Their number and extent distinguish London from other major capital cities. And of all of London's open spaces, Hampstead Heath is the greatest. Unlike the parks of London, it is in general preserved in its “natural aspect and state”: see section 16 of the
2 There are numerous ponds on the heath. Most were originally dug out, probably in the seventeenth century, to serve as reservoirs for London's water supply. They are replenished by natural springs. Those on the north-eastern side of the heath are known as the Highgate Ponds; those on the south side of the heath are known as the Hampstead Ponds. Ponds on the heath have for many years been used for swimming and bathing. There is a painting by Constable, newly displayed in Kenwood House, once the home of the great Lord Mansfield, showing bathers in one of the ponds at Branch Hill in about 1829.
3 These days, only three of the ponds are used for swimming or bathing. The Kenwood Ladies' Pond, near Kenwood House, has been used by women swimmers since 1925. The Highgate Men's Pond has been used by men swimmers since at least 1890.
4 This case is concerned with the Mixed Pond, which, as its name suggests, is available to both men and women swimmers. There is a jetty that has been constructed at some time to assist swimmers to get in and out of the water, and the side on one side has been concreted and fenced, but otherwise it has the appearance of a natural pond. It is not suggested that there are any unusual or hidden dangers in the Mixed Pond. Some swimmers wish to swim in the Mixed Pond early in the morning in winter when it is unattended and not open to the public, and before the other ponds open to the public. They include the second claimant, and the first claimant represents other potential early morning swimmers.
5 The swimmers accept that swimming in an unattended pond exposes them to some risks. They say that they know the risks, which they consider to be small, and are willing to incur them. They are willing to do so because they enjoy swimming in the pond, and appreciate the benefits...
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