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Case Summary: Chad Mole

Sep 20, 2020

CASE SUMMARY

Chad Mole was seven years old when he and his family attended the Splashland pool in Trecco Bay, Porthcawl, Wales. Upper Bay Limited is one of the largest caravan park operators in Europe. Upper Bay Limited owns Parkdean Resorts, which is one of its subsidiary brands. Chad and his family lived in Halesowen, near Birmingham, and were on holiday at the facility. The family were scheduled to spend a few days at the caravan park.

On Tuesday, 18 October 2005, at around 11:30, Chad was in the indoor pool at Splashland with JJ, his four-year-old brother, and his father, Mr Mole (BBC, 2009). Mr Mole was playing with both his children whilst Mrs Mole was elsewhere. As Mr Mole was playing with Chad’s younger brother, Chad wondered towards an area of the pool, shaped like a shallow shelf, called the “bubble lounger”. Whilst sitting in the bubble lounger, he was spoken to by Ms Sperduty, the assistant manager of the swimming pool, who asked Chad to go and find his father. Chad did not return to his father’s side. How long Chad wondered off for we cannot be precise. The Court heard “it was a matter of minutes, not seconds”, and it seems that he wandered off into the deep end of the pool where he was later found.

A short while later, was spotted by Mr Joseph Coffey, a parent, who at the time was swimming with his two children. Mr Coffey’s first thought was that Chad was playing, but when Chad’s body rocked forwards, Mr Coffey recognised that Chad was in serious danger and initiated a rescue shouting for help. Chad was recovered from the water, his lips blue, and not breathing. Two lifeguards commenced CPR on Chad who was given vital emergency care by centre staff before being taken, by ambulance, to the Princess of Wales Hospital at Bridgend. Due to the critical nature of his injuries, he was transferred to a specialist children's ward at Cardiff University Hospital. Chad’s condition was eventually stabilised but was left with a severe hypoxic brain injury.

The pool was immediately closed following the incident. An investigation by the Police ruled out manslaughter and neglect changes, and handed the case to the enforcing authority, Bridgend County Borough Council’s Environmental Health Department (BBC News, 2008). An inquest took place in the interim, of which few details survive in the public domain before the Council concluded their investigation. The Council charged Upper Bay Limited with a breach contrary to s.3(1) and s.33(1)(a) of the Health and Safety at Work etc. Act 1974 (HSWA 1974).

 

R v Upper Bay Limited (2008) (Cardiff Crown Court, 18 June, unreported)

Upper Bay Limited pleaded not guilty to the charge of failing to conduct his undertaking in a way so as to ensure, so far as is reasonably practicable, that persons not in their employment (Chad) were not exposed to risks to their health or safety.  The first trial collapsed when the jury was unable to reach a verdict on the charge levied against Upper Bay Limited by a permissible majority.

A second jury was empanelled and HHJ Hopkins QC heard the retrial of Upper Bay Limited at Cardiff Crown Court on 18 June 2008. Upper Bay did not contest that they owed the duty under s.3(1) to Chad but advanced a case premised on having discharged that duty by providing all precautions that were reasonably available to them. Mr Ian Pringle QC opened for the prosecution with the following:

The case you are about to hear concerns a non-fatal drowning at Trecco Bay. It was caused, the Crown say, in simple terms by this company not having a proper system of work, not having sufficient numbers of lifeguards on duty, not having lifeguards clearly observing these people and not having a system where people would react properly when they saw a young boy in a dangerous part of the pool. As a result of that failure, we say that young Chad Mole, very, very nearly drowned. His life was saved but he will forever have a catastrophic brain injury that has severely disabled him.

The Court heard the following key facts in evidence (BBC News, 2008):

As part of assessing its responsibilities for health and safety, it identified a "bubble lounger" as an area which involved reduced staff visibility because of the correlation of steel columns, agitated water and reflective glare. Young, weak or inexperienced swimmers were identified as potentially exposed to risk if they strayed out of their depth. There were a number of requirements that related to children under 8. They were to be accompanied by an adult. The maximum number of children permitted to be present accompanied by anyone adult was three. The minimum number of lifeguards on duty was to be four, with a maximum of six. An extra member of staff was to be assigned to control an elevated water slide and its stairway known as the "flume" and the "flume tower". Problems of visibility were to be addressed by the positions taken up by lifeguards. Some lifeguard positions were to be manned when the facilities were open so that the lifeguards could survey (CoA, para 5, 2010).

The applicant had a number of policies that are not irrelevant (CoA, para 6, 2010). Ms Jacqueline Gowan (a consultant in the field of environmental health) was later called by the defence as she had contributed to the drafting of the health and safety policy of the applicant which included the following elements:

Item 1: Young inexperienced and weak swimmers are at potential risk if they stray out of their depth. Children under 8 years of age must be accompanied in the water by a responsible adult."

Item 2: Children under 8 years of age must be accompanied in the water by an adult, defined as a responsible person of 16 years of age and over. A maximum of three children per adult is allowed. Receptionists must ensure the rule is strictly adhered to. Any queries to be referred to the manager.

Item 3: Pool assistants must check those children who appear to be under 8 years of age are accompanied in the water by an adult. Children without adequate supervision must be asked to stand on the poolside and the person responsible for the child found and advised of their responsibility and ensure supervision is maintained. Any queries to be referred to the manager.

The Prosecution case said that Upper Bay had failed in its duty to Chad Mole and exposed him to a risk to his health and safety by failing to properly organise supervision of the pool. The deep end was not properly supervised, and one of the lifeguards on duty had failed to comply with the policy which related to the safety of unaccompanied children in the area of the pool when they were under 8 years of age (CoA, para 8, 2010). In addition, the prosecution said:

(a) There was a total lack of care in failing to ensure Chad was not at risk of drowning. The supervision provided was insufficient and deficient in its execution. There was no lifeguard on duty on a highchair near the bridge end of the pool and no lifeguard patrolling up and down by the bubble lounger. The decision of Ms Sperduty to fail to reconnect Chad with his father was, in the prosecution's view, a serious error.

(b) Ms Sperduty told Chad to go back to his dad, but nothing was done to ensure this occurred. The action was contrary to the Pool Operating Procedures for the site. Mr Andrew Ebben, an expert witness, called by the prosecution, said:

Depending on the circumstances, it takes just seconds for a child to be in danger. By intervening early, a lifeguard can ask a child to come to the side, ask who they are with, and go from there.

The Court heard that on this occasion, that was not followed (Wales Online, 29 March 2013). Within a short time, Chad slipped from the bubble shelf into the deep water where he was found by Mr Coffey, a member of the public.

(c) The Prosecution position was that early intervention and proactive lifeguarding was not adopted by Upper Bay staff on the poolside on the day of the accident and that Upper Bay had not done all that was reasonably practicable to ensure Chad was not exposed to risks to his health or safety.

At the end of the prosecution case, the defence made a submission of no case to answer. The below is taken from the later Court of Appeal decision, (primarily, CoA paragraph 11) which agreed that the trial judge’s summary of the evidence at the point of this application was a “fair, accurate and balanced assessment of where the evidence that far had taken him and the jury.” The Court of Appeal's summary of the trial judge's response to the application of no case to answer was as follows: 

On the fateful day of 18 October 2005, Chad Mole went to the swimming pool with his father and younger brother. Once they passed the reception desk, Mr Mole and the boys went to the changing room area and, having changed into their bathing costumes, went to the shallow part of the pool, also known as 'The Beach'. In the immediate vicinity, there were signs stating that children under the age of 8 had to be accompanied by an adult.

The water there is very shallow and gets slightly deeper as one moves towards the bridge. That was ideal for Mr Mole's sons for, although Chad had had some swimming lessons in school, his father told the jury, neither Chad nor his younger brother, JJ, then aged 4, could, in fact, swim. Neither boy had armbands nor any other buoyancy aid when they arrived at the pool (BBC, 2009, 18th). To begin with it is plain that he, his younger brother and his father stayed together in the shallow end.

After splashing each other in the water for a short while, Mr Mole said that Chad played on a small slide leading into the shallow water whilst he, Mr Mole, attended more to JJ. Mr Mole told the jury that he noticed some floats at the side of the pool and asked a member of staff if he could have one and, having obtained a float for JJ, Mr Mole began to play, exclusively, it seems, with the younger boy. He said that he assumed Chad was still in the shallow water behind him.

After what Mr Mole said he thought was about six or seven minutes he turned around and realised Chad was not there. He called for him. Before that call, and unbeknown to Mr Mole, Chad had reached the deep end of the pool near what is called the 'bubble lounger', a semi-circular jacuzzi, in effect, which forms part of one side of the main swimming pool. Of the four lifeguards on duty, the two nearest the pool were Mr Simon Hughes and Ms Jo Sperduty. There is no evidence of how Chad got there. Nobody saw him approach or arrive at that point. He may have walked around the edge of the pool and then got into the water at the bubble lounger or he may, remaining in the water, have gone under the bridge which separates the shallow from the deep part of the pool, by edging along the pool edge.

There is evidence that Chad was seen in the water at the bubble lounger by one of the Splashlands' lifeguards, Ms Sperduty. It is said that she spoke to him and told him to go back to his parents and that she then walked away to await the arrival of two unconnected girls with learning difficulties at the end, the aqua chute part of what is called 'the flume', the flume being an elevated water slide reached by a circular stairway close to the bridge. Chad did not or could not do as Ms Sperduty told him.

Mr Joseph Coffey was at Splashlands with his two children. He told the jury that he had walked through the water from the shallow end and under the bridge into the deeper water. He said that there were one or two lifeguards at the foot of the stairs leading to the flume and one at the bottom of it, that is by the aqua chute. None or neither, he said, was looking towards the deep end or the bubble lounger and the female, obviously, on the evidence, Ms Sperduty, he said was looking towards the foot of the flume stairway. As Mr Coffey neared the bubble lounger, at around 11:20, he saw Chad. He said that Chad's head was beneath the water, that the boy was upright in the water with knees bent, and at first he thought Chad was playing a game, holding his breath underwater. But, as he neared him, he saw the boy rock forward in the gentle current of the pool, and he realised, as he put it, that something was wrong. He approached Chad, lifted him out of the water, called out to Ms Sperduty, who came at once, and carried the boy to the edge of the pool and passed him to her. Chad was limp and his lips were blue. He heard Mr Mole screaming.

Chad, we know, had stopped breathing and, although, with difficulty, he was resuscitated by pool staff and ambulance personnel. Mr Hughes and Ms Sperduty started resuscitation. Chad started to breathe but then he stopped. Further emergency and urgent treatment were given to him. An ambulance crew arrived. He was taken to hospital. Tragically he has suffered substantial brain damage (CoA, para 7 and 11, 2010).

Mr Robert Evans was also at the pool that day with his fiancee or girlfriend and her daughter. The fiancee or girlfriend is now his wife. He saw Chad being lifted from the water by Mr Coffey. He said that there was no lifeguard in the high chair at the deep end, and he repeated, in effect, what Mr Coffey had said as to the positions of Jo Sperduty and the other lifeguard, the other lifeguard being at the stairway to the flume tower.

The prosecution also called two environmental health officers from the Bridgend County Borough Council in this order, Mrs Thomas and, the more senior of them, Mr Williams. They had been assigned to investigate this tragedy, and both went to Splashlands for that purpose. Also called by the prosecution was Mr Andrew Ebben, an independent expert in the regulation of swimming pools and the training of lifeguards. I have touched upon a part of the evidence of Mr Williams in referring to Jo Sperduty's speaking to and then walking away from Chad Mole. Mr Ebben gave evidence about and was cross-examined upon the documents contained in the prosecution jury bundle and a defence bundle, those documents relating to the management of swimming pools generally and, specifically, to Splashlands.

The trial judge HHJ Hopkins QC dismissed the no case to answer application by Upper Bay, and the defence was invited to open their case.

The defence case was that this was a sad accident that resulted from a lack of proper supervision of Chad by Mr Mole, his father, who had failed to ensure that he had armbands or other buoyancy aids and who had allowed him to wander away from the immediate vicinity in which Mr Mole and JJ Mole were playing. The defence was premised on two points: (i) the negligence of Mr Mole in supervising his son meant that Upper Bay did not owe Chad a duty of care, alternatively (ii) that all reasonably practicable steps had been taken to ensure that duty was fulfilled (sufficient lifeguards, polices had been complied with, the judgment of the lifeguards involved was reasonable in the circumstances) (CoA, para 9, 2010). Additionally, the defence brought the following evidence in support of those arguments:

(a) Upper Bay took all reasonable precautions to ensure Chad was not exposed to risks to his health and safety. The pool operates to the highest safety standards in ensuring 175,000 annual users enjoy swimming in a safe and secure environment.

(b) The pool had signs in place on the poolside stating that under-eights should be accompanied by an adult. Mr John Cooper asked Mr Mole:

JC: When you arrived at the swimming pool, did you notice any signs saying under-eights should be accompanied at all times?

Mr Mole: When I took them swimming, they were excited. We did not look at anything like that (Wales Online, 13th 2008).

(c) Mr Mole said he had last seen his son six or seven minutes before he was pulled from the water. Mr John Cooper, defending, asked Mr Mole if he blamed himself:

Mr Mole: I wouldn’t say I was to blame sir. I would say the lifeguards should have done their job. I feel remorseful now, I have nightmares. But I still feel they did not do their job. It could happen to any family in that environment. Do you think I would put my son in danger? There is no way I would do that sir. I wish to god it had happened to me instead. I thought they were totally safe in the shallow end, and I did not realise the deep end could be accessed under the bridge feature.

(d) Upper Bay argued that they could not be expected to provide 1-2-1 supervision for pool users. Mr Cooper called Mr Keith Sach, an expert witness, to assist the Court in understanding that position:

Mr Cooper: You say the fundamental line of responsibility is the parent?

Mr Sach: Yes. A lifeguard was no substitution for the supervision of a parent and that the three lifeguards on duty at the time was adequate. Children under eight years old require a level of supervision that the pool operator, through lifeguards, cannot provide. It recognises that by saying that the first risk control measure is direct supervision by a parent or adult. Lifeguards do not offer one-to-one supervision; they supervise the pool. Lifeguards cannot substitute the supervision of a parent. The HSE’s own research shows 60% of drowning emergencies they investigate are detected by bystanders.

(e) Ms Sperduty had no reason to believe Chad was a non-swimmer or was in any danger at the point she saw Chad at the bubble lounger. The defence also said it would be entirely unreasonable to physically remove Chad from the water (Wales Online, 29th March 2013):

Mr Sach: In today’s society, physically pulling, tugging, or restraining a child would be open to considerable misinterpretation and parental objection. Physical intervention would only be used if a child was in danger or needed to be retrieved from the pool.

Ms Sperduty: I have regrets. Hindsight is a wonderful thing. It is easy to look back and criticise – and I do criticise myself – but that is not going to change things. I wish now I had asked him to get out of the water, but that day I did not think he was in any danger. I had no reason to believe he could not swim because he was not wearing any buoyancy aids, and he did not look to be in any trouble. It is not a lifeguard’s responsibility to look after individual children – it is the parents.

After a two-week trial, Mr Pringle stood up to address the jury before they retired to consider their verdict (BBC, 2009):

It will no doubt be the defence case that it was Chad’s father who was responsible. However, Mr Mole is on trial. He faces his own life sentence you might think already. Members of the Jury, it is your task to decide whether this company failed in the statutory duty, imposed by Parliament, to ensure Chad Mole was not exposed to the risk of drowning. That is why the legislation is there. Parents cannot always watch every move their child makes.

Mr Cooper stood to up to reaffirm the defence position that Upper Bay did not accept it owed a duty of care to Chad on the basis Mr Mole was negligent in the exercise of his duty and, even if it did owe that duty, it discharged the duty by taking all reasonably practicable steps to ensure Chad was not exposed to a risk to his health or safety.  

The jury returned their verdict and found the defendant, Upper Bay Limited, guilty of a breach of s3(1) HSWA 1974 for failing to conduct his undertaking in a way so as to ensure, so far as is reasonably practicable, that persons not in their employment (Chad) were not exposed to risks to their health or safety. The case was adjourned for sentencing the following Tuesday, pending submission of the defendant's financial circumstances and to enable preparation of any mitigation advanced by the defendant (BBC, 2009).

Sentencing took place on 9 July 2009 at Cardiff Crown Court. HHJ Stephen Hopkins QC sentenced the company to pay a £150,000 fine to be paid in three months. Upper Bay was also required to repay £182,500 in prosecution costs. HHJ Hopkins QC said:

The company breached its own policy by failing to have sufficient lifeguards on duty with no one supervising the deep end at the time of the accident. I accept that with so few people in the water this may have been a factor in failing to properly supervise the deep end of the pool.

A spokesperson for Upper Bay said:

The tragic accident has deeply affected and saddened everyone at Trecco Bay. We have always provided the necessary resources and regular training to ensure all staff can carry out their duties competently, professionally, and above all to ensure the safety of both our customers and staff.

Upper Bay Limited made an application to appeal against its conviction, which was declined at first instance, before being granted by the Court of Appeal. 

 

R v Upper Bay Limited [2010] EWCA Crim 495 (2nd March)

The Court of Appeal (Criminal Division) heard the case on the 2nd March 2010, at the Royal Courts of Justice. The Lord Chief Justice, Lord Judge, Mr Justice Roderick Evans and Mr Justice Griffith Williams heard the appeal. Mr Christopher Purchas QC, Mr John Copper and Mr Harry Vann appeared on behalf of the appellant Upper Bay Limited. Mr Ian Pringle QC, Mr B Thomas appeared for the Crown.

Mr Christopher Purchas QC, appearing for the applicant Upper Bay Limited, submits that the conviction is unsafe for two reasons: (i) the trial judge was wrong to dismiss the defence application of no case to answer at the close of the prosecution case and, or in the alternative, (ii) the trial judge misdirected the jury in the provision of three questions he put for their consideration.

(i) The trial judge was wrong to dismiss the no case to answer submission at the close of the prosecution case

Mr Purchas QC relied on the following submissions:

(a) The risk of drowning to which Chad Mole was exposed was the result of a combination of his inability to swim, his height (compared to the depth of the water), the lack of supervision by his father, and the absence of any buoyancy aids to keep him afloat, for which no one suggested at the trial that the applicant was to blame. Therefore, the conduct by the applicant of the undertaking was not responsible for exposing the boy to any of the risks.

(b) The applicant was not responsible for, nor aware of, the boy's inability to swim. The father was responsible for providing the necessary parental supervision of the boy throughout the time he was at the pool and was the only person responsible for ensuring that Chad was provided with buoyancy aids while he was in the pool. The father's lack of supervision was the sole cause for Chad leaving the shallow end of the pool and, ultimately, the accident.

In their unanimous judgment, the Lord Chief Justice said:

The duties under section 3(1) of the HSWA 1974 are non-delegable (para 20) and the defence cannot rely on the failure of parental supervision to exonerate themselves from liability against this charge.

The duty of the operator is concurrent with the duty of the parent. The single question is whether there is a prima facie case for Upper Bay to answer as to whether it was in breach of the duty imposed on it. Whilst we accept Upper Bay did not have an absolute duty to guarantee Chad’s safety, it had a duty, so far as is reasonably practicable, Chad should not have been exposed to a risk to his safety or health arising from failings in the way the applicant conducted its undertaking; in this case the running and management of the swimming pool and the safety of all those using it (para 20).

We accept that Mr Mole also owed a non-delegable duty to protect Chad and Upper Bay could reasonably expect parents to supervise their child. At the same time, taking account of all the factors, Upper Bay had to recognise and anticipate -- and appears to have recognised and anticipated in its policy -- the reality that on occasions small children do escape not only when parental supervision is lax, but even when parental supervision is very close. That is what children do. That fact is underlined by the acknowledgement in the applicant's policy about how an unaccompanied child under the age of 8, if seen unaccompanied, should be treated by the staff. In short, swimming pools are dangerous places for young children. Those who take them to the pool, and those who manage the pool and are responsible for the way in which the pool is organised and conducted, must do everything they reasonably can to avoid the risk that a child or children may be drowned. All these considerations must be addressed with a clear eye on the practical realities (para 20).

Whilst it is sad to have to record, but we do have to record, that, unfortunately, on this occasion adequate parental supervision was not provided for Chad, not merely through the failure to provide armbands and buoyancy equipment, but through the absence of supervision over his movements. These factors contributed to the accident which befell the boy (para 19).

(ii) The trial judge misdirected the jury in the provision of three questions he put for their consideration

The Court also passed comment on the way in which the Judge summed up the position to the jury. HHJ Hopkins QC split his points into three questions for the jury:

Question 1: Why was it that nobody in authority at the pool saw Chad as he made his way along from the shallow end to the deep end? Mr Purchase submitted that had someone seen him, there would have been no duty on anyone to intervene. The Court declined to accept that would have been the position.

We doubt that. If a boy aged 7 is wandering to the deep end of a pool near some attractive features and somebody who is responsible for the safety of children at the pool sees him and he appears to be without a supervising adult, that person would have a duty to intervene and with a few sensible questions find out what was going on.

Question 2: When Jo Sperduty saw Chad in the water at the bubble lounger, when she said and did what you find she said and did, was she complying with the [applicant's] own safety policy in a way to ensure Chad's safety? Mr Purchas submits that it was an inappropriate question as even if there was a failure to comply with the safety policy, that failure could not be definitive of possible criminal liability. The Court agreed that it could not be definitive of criminal liability but declined to agree the question was inappropriate:

We agree that it could not be definitive of possible criminal liability, but as a question for the jury to consider in the context of what Jo Sperduty said and did when she saw the young boy in the water, it was a legitimate question for the consideration of the jury.

Question 3: After she, Miss Sperduty, left Chad, why did neither she nor Simon Hughes sees him drowning or unconscious under the water? Mr Purchas argued that this was a loaded question as it confused the concept of vicarious liability, which did not apply, with the duty on Upper Bay under the 1974 Act. The Court declined to agree the question was inappropriate:

In the context of this case, it was a question that legitimately arose for consideration. What had happened to the boy? The answers to all these questions may have been favourable to the applicant. They may have been unfavourable. We do not know. The trial judge asked the jury to consider those questions, not as directions of law, but as suggestions for their consideration. They were not bound to consider them; nor were they directed to reach conclusions suggested, whether directly or by hint, from the trial judge. They seem to us to be questions which might reasonably be considered by the jury, and certainly, questions which the trial judge was entitled to invite the jury to consider.

The Court concluded by stating:

In all these circumstances, we consider that there is no arguable basis for concluding that the conviction of the applicant was unsafe. Accordingly, the present application will be refused. There is one small footnote to this judgment. It is only fair to Judge Hopkins to record that the reasoning in our judgment is fully in accord with his approach to this trial and the sensitive issues which arose in it.

The applicant was ordered to pay the agreed costs of £24,000 to the Crown.

 

References (28)

Note: wish those affected all the best in their future. No part of this article purports to attribute blame. See our methodology page for further details of how these case summaries are constructed. 

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Citation: Jacklin, D. 2020. Case Summary: Chad Mole. Water Incident Research Hub, 20 September.