There's quite a fuss going on in the Leeds area about the River Wharfe at Otley, where Leeds City Council are thinking of erecting fencing to keep the public away from the water. In case they drown in it, presumably.
The Council asked the Royal Society for the Prevention of Accidents to investigate the site and prepare a report, which was nice of them really, as RoSPA don't otherwise seem to fulfil any useful purpose. Mind you, the report when they delivered it wasn't all that useful. It contained deathless little gems like …
This can occur from either accidentally falling into or deliberately accessing the Water"
God, you have to admire this kind of expertise, don't you? Do you think they go to university and get degrees in Accident Prevention or something, that enable them to come up with penetrating insights like this? Note the capital double-u in "Water". This tells us that they aren't talking about just any old water. This is special water, the sort that can drown you, and it takes an expert with a degree in Accident Prevention to spot the difference, and I'm sure we're all jolly grateful that RoSPA has in its ranks such paragons of acumen and public service.
The RoSPA report is characterised by considerable ignorance and a certain amount of arrogance. For instance, it makes some play with the case of John Tomlinson, an 18-year-old youth who ignored prohibition notices, dived into a lake at Congleton, broke his neck and then sued the borough council for letting him do it.
The RoSPA report says …
"5. Implications of the 'Tomlinson' Case
The 'Tomlinson' case was taken under the occupier's duty of care to visitors to the site including trespassers and the relevant sections of the Occupiers Liability Act applied.
The circumstances related to a trespasser who broke into Local Authority owned land and dived into a lake occasioning a serious neck injury. Signage and fencing were in place, however a recent safety audit had identified that this was inadequate and the Council had been recommended to make improvements, which they had not done due to fiscal restraints.
The judgement in the litigant's favour rested upon the following factors:
- Where the risk is open to the public and you take active measures to encourage visitors, your safety measures must be particularly effective.
- Where the risk is in a remote area and numbers of visitors are few, your safety arrangements can reflect this reduced pressure from the public.
- The Judgement expected that a Local Authority should have adequate financial resources to implement safety recommendations and not to do so was no defence.
This was a very unusual case and legal opinion is that these particular sets of circumstances are unlikely to occur again. It was also interesting that the award to the litigant was reduced by two thirds due to his wilful neglect for his own safety.
The basis of your defence against any litigation will be effective risk assessment and implementation of control measures, e.g. band four fencing, life saving equipment (not applicable in this case), signage and regular site monitoring. In the RoSPA consultant's the adoption of the following arrangements and prioritised proposals for improvement, based upon a risk assessment, take account of increased public access to the basins both from residents and visitors. This should provide you with an adequate defence as well as meeting your moral obligation to the residents and persons that visit your site."
And elsewhere they say "The council is strongly urged to carry out these recommendations and your attention is again drawn to the implications of the Tomlinson case where in effect a Council was strongly criticised and found at fault in law for failing to implement the requirements of a safety review.
The ignorance and/or dishonesty is staggering: Tomlinson lost! RoSPA neglect to mention the fact that Tomlinson's claims were thrown out at appeal by the House of Lords, who completely exonerated Congleton Borough Council. The arrogance lies in the suggestion that if Leeds City Council adopt and follow the recommendations of the report, they will be safe from litigation. It's rather like "buy this relic, a genuine toe-nail of the Lord Jesus, and you're guaranteed a place in heaven".
It's quite interesting to read what the Law Lords actually said about the Tomlinson case - and yes, we know we're going out on a limb here, talking about what really happened rather than just making it up to suit our own purposes like RoSPA. We're entering uncharted waters where RoSPA apparently fear to … er … swim …
Lord Hoffman: "It is a mere circularity to say that a failure to stop people getting into the water was an omission which gave rise to a duty to take steps to stop people from getting into the water. It is of course understandable that organisations like the Royal Society for the Prevention of Accidents should favour policies which require people to be prevented from taking risks. Their function is to prevent accidents and that is one way of doing so. But they do not have to consider the cost, not only in money but also in deprivation of liberty, which such restrictions entail."
Lord Hutton:"It cannot be the duty of the owner of every stretch of coastline to have notices warning of the dangers of swimming in the sea. If it were so, the coast would have to be littered with notices in places other than those where there are known to be special dangers which are not obvious. The same would apply to all inland lakes and reservoirs."
"It is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coast line and other beauty spots to be lined with warning notices? Does the law require that attractive water side picnic spots be destroyed because of a few foolhardy individuals who choose to ignore warning notices and indulge in activities dangerous only to themselves? The answer to all these questions is, of course, no."
Lord Scott: "Of course there is some risk of accidents arising out of the joie de vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone."
But RoSPA know better, of course. They don't care what the stuffy old law lords say. They don't take any notice of inconvenient truths. They aren't bothered that what they're telling the City Council is a pack of lies. They've got their own view, and their view says "The duty of care is extended to protect people even from their own ill-judgement or wilful abuse of facility or equipment". What a pity for John Tomlinson that the law lords hadn't realised that - he might have a few million in the bank by now, a fitting reward for his ineptitude and poor judgement.
And what do local people think about all this? Well, they're none too pleased, it seems …
"the popularity of the riverside in Otley has been going on for a long time and it still is our main attraction. Over all these years, with thousands of people taking the riverside walk, how many 'falling in' accidents have there been? The answer is NONE. Let the parents and families look after anyone for whom they are responsible. We do not either want or need a fence." - Betty Waye, Otley
"Will Leeds City Council now ban ball games in the park in case the ball goes over the fence?" - Tim Hendry, Otley Angling Club
"When I first heard about this, I could only believe that it was some sort of joke. Any proposal should be subject to the filter of commonsense. It is possible to fall into the river at Otley, but, generally speaking, most people manage to avoid it. Otley residents have a legal right to access the river if they desire." - David Brear
"A fence will do no more than obstruct those trying to rescue a person in difficulty. Indeed it probably creates a health and safety hazard." - John Sharples, Yeadon.
"I have heard of people falling off cliffs or being washed out to sea, but have never heard of a council being sued for negligence, and none of them suggested fencing off the beach." - C M Harper, Yeadon.
Leeds' failure is that instead of thinking for themselves and making a common-sense decision, they asked RoSPA to do their dirty work for them and now feel bound to follow their advice on the principle "You don't keep a dog and bark yourself". Councillor John Procter is quoted as saying: "The river at Wharfemeadows has been the subject of a thorough safety examination by specialists and they have given us advice on how to make the river safer for the public. Now we have that advice, we cannot simply ignore it."
The GOS says: Last May a sad little story appeared in the press:
"The parents of a Flintshire toddler who drowned at a holiday park hope his death will prompt the government to introduce tighter controls on ponds. Matthew Marsden, from Buckley in Flintshire, drowned in 18 inches of water at a Gwynedd caravan park. Since the tragedy the Marsdens have been campaigning for stricter safety laws governing pools and ponds in public places.
'I wouldn't want anyone to have to go through what my family have been through,' Mr Marsden said. 'If we could bring about a change in the law and prevent another tragedy like this, it would help other people and give us more closure'."
And what's so sad is not just the unnecessary death of a small child, tragic though that is, but that the grieving parents should so transparently want someone else to be responsible for their own lack of attention. It has been known for a toddler to drown in only a couple of inches of water, but nobody would take seriously a call for fences round puddles. Unless they lived in Leeds, that is …
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