Personal injury – non-delegable duty – standard of
care – expert evidence – witness evidence
13 February 2015
The claimant, aged ten
at the time, suffered a brain injury caused by lack of oxygen after getting
into difficulty during a school swimming lesson. The court held that both the
teacher in charge and the lifeguard had been negligent and thus the defendant
Local Authority was liable for the claimant’s injuries.
The claimant’s case was
that the swimming teacher and/or the lifeguard failed to exercise reasonable
care in the performance of their duties in that they failed to observe that the
claimant was in difficulty, raise the alarm and take appropriate action within
a reasonable amount of time. As the judge put it, “timing was the critical
The procedural history
was complex and the claimant had previously taken the case to the Supreme Court
who had decided that Essex County Council did owe the claimant a non-delegable
duty of care to take care of her in school swimming lessons. The court
therefore had to decide whether the teacher and lifeguard on duty at the time
of the event had been negligent.
Article continues below...
Contemporaneous witness accounts taken some 15 years earlier from other children in the class were used at trial. These were described as “impressive” by the judge and stated that once they had noticed the claimant in difficulty, they had shouted for the attention of the swimming teacher, who was deep in conversation and did not respond. The swimming teacher disputed this and her evidence was that the claimant was in the water for only 10-15 seconds before she was spotted. The lifeguard contended that no lifeguard was required at all and that sufficient supervision could have been taken by the swimming teacher.
The claimant’s medical expert concluded that the claimant’s injuries were caused by her being in difficulty in the water for a minimum of 30 seconds. After a detailed consideration of events and the number of children in the pool, the court agreed that the claimant would have been taking in water for at least 30 seconds and that it was this, rather than a primary cardiac event, that had caused her injuries. Further, the court found that the teacher and lifeguard’s failures to spot the claimant in difficulties for more than 30 seconds fell below the required standard of care to be reasonably expected of her. These failure significantly contributed to the passage of time and thus to the injury sustained.
There is a high standard of care required on teachers and lifeguards when supervising swimming children. This judgment has been long time coming for the claimant who has had to not only cope with the devastating life changing injuries she suffered, but also the numerous legal battles she has had to fight in order to get to a position where she will get some compensation.
Joseph Carr and Ellen Lucas, Anthony Gold Solicitors