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Incident Report: Luke Hutton

Nov 29, 2020

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On Saturday, 29 September 2007, Luke Hutton was seven years old when he and his single mum, Gail, met a family whilst on the bus who were going to the swimming pool (BBC News, 2007d). Gail had not intended to take Luke swimming, but they bumped into friends who were going swimming at the Olympia Centre. They invited Luke to go swimming with them.

Gail agreed to take Luke swimming with his new friends, stopping to purchase a pair of swimming trunks at the city centre shop before arriving at the Olympia Centre swimming pool in Dundee at 16:05 (BBC News, 2007e). The pool was operated by Dundee Leisure Trust, a charitable trust which took over the operation of the centre from Dundee City Council in 2006 (Wilkie, 2009). When they arrived at the pool, Gail paid for Luke’s swim at reception and headed to the public gallery and café along with the other mum to watch their children play in the pool (Wilkie, 2009). 

The pool had an area known as a wave channel, which is where swimmers could go to feel the full force of the wave machine. Luke became separated from his friends and was last seen entering the wave channel while holding on to a float. The wave channel had a blind spot, which can’t be viewed by lifeguards, and it is thought that Luke lost his grip on the float while the wave machine was in operation and subsequently drowned (SHP, 2009).

When the waves stopped, swimmers were asked to leave the pool as it was the end of the session. At 18:00, the pool was closing, and Luke’s friends began to get changed. When they emerged from the changing rooms a few minutes later, Gail realised Luke was missing. Gail alerted staff at the Olympia Centre that Luke was missing.

Staff searched the poolside but could not find Luke. As they searched for Luke, lifeguards told Gail they had checked the water and Luke was not there. They began to search the rest of the building and made enquiries to see if Luke had left the centre or been taken by someone. There was still no sign of Luke 30 minutes later, and Gail pleaded with centre staff to re-check the pool.

Gail tried to follow staff onto the poolside, and centre staff turned and stopped Gail from getting through. Gail would later say that it was that moment when she knew they'd found Luke. As staff peeled back the pool covers, Luke’s body was found underneath the covers at the deep end. Luke was unconscious and not breathing. Lifeguards began CPR, and an ambulance was called. Police took Gail to Ninewells Hospital, where she was joined by Luke's sisters, Chantelle and Stephanie (Wilkie, 2009). Shortly after the family joined Luke at the hospital, doctors informed the family that there was no chance to save him and that it would be best if they let Luke go in peace (Moncur, 2012).

Luke lived in Ardler, Dundee, with his mum and sister Chantelle and was in primary four of nearby St Fergus Primary. He was a keen footballer and attended the Good News Youth Group every Wednesday night at the Chalmers Ardler Church close to his home. A friend of the family, Val, said Gail was being comforted at home and was too upset to talk publicly. Val paid a glowing tribute to Luke, who often played with her grandson (Daily Record, 2012):

Gail blames the staff for not trying hard enough to find Luke. All the time they were looking for him upstairs and in the changing rooms and he was underneath the cover. She asked the lifeguards at the Olympia complex whether they had checked the pool and they told Gail they had and not to worry.

She can’t understand how on earth the lifeguards could miss a wee boy like that, surely that's their job? She is completely distraught about what happened.

Luke was always immaculately turned out for school and was always polite whenever he spoke to you. We are all absolutely gutted about what has happened. We all look out for each other, and Luke was a great boy.

A spokesman for Dundee Leisure Trust, which runs the pool on behalf of Dundee City Council, said (BBC News, 2007a; Moncur, 2012):

We are very shocked. We are fully co-operating with police, as well as carrying out our own inquiry.

We are shocked by this tragic incident. We are fully co-operating with Tayside Police as well as carrying out our own investigation. We are doing everything to find out the exact circumstances of the tragedy.

The pool remained closed on Sunday, and staff who were on duty on the day of Luke's death were told to stay at home when the complex was due to reopen on Monday. Staff who were on duty on Saturday were told not to turn up for work when the pool reopened yesterday morning. Bosses had decided to close it on Sunday as a mark of respect and to allow the investigation to proceed. It is understood there are normally at least four lifeguards on duty at all times in high chairs (Daily Record, 2012).

Dundee West MSP Joe Fitzpatrick said (BBC News, 2007a):

I am aware there is an ongoing investigation and I would hope it will be very, very thorough.

I was absolutely shocked to hear about this. My sympathies go out to Luke's family and friends who will be going through a very hard time. I intend to write to his family to express my condolences. I am aware there is an ongoing investigation and I would hope it would be very, very thorough.

Gail, Luke’s mum, later said  (BBC News, 2007; Moncur, 2012):

We were in town shopping for presents for his birthday when we bumped into his pals. They were going swimming and Luke begged me to let him go.

He didn't have any trunks, so I popped into Primark to buy him a pair. I was watching Luke enjoying the pool and then near the end of the session he gave me one of his cheeky grins and a lovely wave. I never saw him again.  

Staff were trying to tell me Luke had probably left the building. I didn't believe them for a moment. I begged the managers and the lifeguards at Dundee's Olympia leisure centre to check the pool one more time for Luke. I demanded that the duty manager call the police which he did.

As I waited for officers to arrive, I saw the lifeguards heading to poolside and tried to follow them, but they physically stopped me getting through the doors. I knew they'd found him, but they wouldn't let me go to him, they told me to go back upstairs. They looked me in the eye and told me they had checked the pool, which was a pack of lies.

 

Remembering Luke & his funeral

In an act of kindness and remembrance, Gail dropped into St Fergus Primary in Ardler on the last day of term with a sackful of gifts for 30 of her son's classmates (Moncur, 2007); less than a week after his death. Gail handed out chocolate selection boxes and gold coins to his friends, and she promised to do so every Christmas for the next four years, the year Luke would have left to go to secondary school. Christmas was Luke's favourite time of year, and Gail said after visiting the school:

I want to make sure his classmates never forget him. The presents are only small but hopefully, the P3 and P4 kids will spend time thinking about him and the fun times they shared as they unwrap their sweets.

I had bought Luke an electric scooter and some Simpsons and Ghostbusters DVDs for his birthday and we had been planning a big party for him at a soft play centre. I can't believe we won't be spending the day together and that he is gone from me. Luke and I were really looking forward to his birthday party.

I still haven’t touched his bedroom it remains exactly as he left it on the day he died. I can’t decide where to scatter Luke’s ashes and I am still angry about what happened on the day he died.

Not a moment goes by without thinking of Luke. I am not keeping too great because I miss my boy so much. The house is so quiet without him. I am trying to be strong for Luke's two sisters. I have been crying my eyes out every day and my life is never going to be the same again. I feel totally lost without him.

Luke was my best pal and we had such a good time together. I have a film saved on my phone of Luke having a laugh and singing with me which I will cherish forever.

Luke’s funeral took place on Monday 8 October 2007 at Dundee crematorium. Over 100 people attended the service. Gail and Luke’s big sisters Chantelle and Stephanie joined relatives, friends and pupils of St Fergus Primary School to pay their last respects at Dundee Crematorium.  

Before the ceremony, Luke's coffin was driven slowly around the streets of Ardler and passed his school and the church, where he attended a weekly youth group (Moncur, 2012). One of Luke's favourite songs, Same Jeans by Dundee-based band The View, along with REO Speedwagon's ballad Keep On Loving You was played at the service. The service was led by Reverend Kenny Stott, who said:

Luke's death has caused an overwhelming sense of loss. What should have been a happy outing last Saturday turned into a tragedy that has broken the hearts of not only Luke's family but the wider community and the city.

Today, which would have been Luke's eighth birthday, becomes a day when we gather to remember the past years with a sense of sadness and shock.

Luke's tragic death has raised so many questions and so few answers. It has caused shock and disbelief; pain and anger; feelings that we cannot put into words but are real.

I thank the emergency services, police and hospital staff on behalf of Luke's family. We pray for lessons to be learned to lessen the likelihood of a repeat tragedy.

 

Short explainer: Coordination of enforcement authorities in cases of workplace-related deaths in Scotland

Following an incident involving a work-related death, the police are responsible for treating the locus as a crime scene. The Police have a responsibility to enquire whether the employer has informed the HSE (or other enforcement authority). The Police also have their own duty to contact the HSE and seek advice on controlling access to the scene. A Police officer of supervisory rank or above will attend the scene to provide the initial assessment. Once the Police Officer of supervisory rank has assessed the scene, they have a duty to contact the Procurator Fiscal and appraise them of the circumstances of the death. The Police are also responsible for contacting a pathologist to attend the scene if the individual is still on-site (this is rare in drowning cases).

The Procurator Fiscal, police and HSE will agree on the division of resources and sharing of evidence. They will also agree on a media and communication strategy for keeping the bereaved and any other witnesses up to date. If a general warning about an unknown hazard needs to be given, the precise wording of that warning will be agreed upon between the parties.

The aim of the early investigation by the Police and HSE is to provide an initial report to the Procurator Fiscal as soon as possible to enable the latter to make an early decision on whether a serious criminal offence (other than HSWA offences) has been committed. In situations where a serious criminal offence is reasonably believed to have caused the death, then the police will take primacy over the investigation. If that threshold is not met, the HSE will take over the investigation. This decision should be recorded in writing by the parties. However, this is not final. If the HSE discover further evidence in the course of their investigation, they must make it available to the Procurator Fiscal if it suggests a serious criminal offence has been committed.

Disclosure decisions shall be made by the Crown Office and Procurator Fiscal Service (COPFS). In rare cases of public importance, such as those involving multiple fatalities, the Health and Safety Commission may, via permission from the Secretary of State, direct a public inquiry to be held. Alternatively, it may direct the HSE or another to produce a special report.

Where death results from an accident in the course of employment, it is mandatory for the Procurator Fiscal to hold a Fatal Accident Inquiry (FAI). The only exception is where the prosecution has taken place in which the circumstances of the death have been fully explored, but permission of the Lord Advocate is required to dispense with the need for an FAI. The Procurator Fiscal will consult with the police and HSE before seeking the Lord Advocate’s instructions on the need for an FAI. Where no prosecution is to take place, an FAI will take place. The Procurator Fiscal will manage all aspects of the inquiry. HSE Inspectors have a statutory right to attend an FAI and ask questions. The FAI is concluded by the Sheriff issuing a determination which is copied to all enforcement authorities.

The Police must consult the Procurator Fiscal before charging an individual or representative of a corporate body with any serious criminal offence related to a work-related death. The decision to charge in the case of serious offences will be taken by COPFS in accordance with the Prosecution Code. The Procurator Fiscal will submit full precognition to Crown Counsel, who will make the decision and have it communicated to the Procurator Fiscal.

In the case of HSWA offences, the HSE (or other enforcement authority) will submit a report to the Procurator Fiscal with recommendations on how to proceed in accordance with the HSC Enforcement Policy Statement and the HSE Enforcement Handbook (Scotland). When Crown Counsel has made its decision, it will be communicated to the Police and HSE as soon as practicable by the Procurator Fiscal. No prosecution decision will be made public until the accused, and the bereaved have been advised.

In all cases where an individual has been charged, COPFS will prepare the prosecution, and Crown Counsel will lead the prosecution at trial.

 

Investigation

Olympia Leisure Centre was closed immediately following the accident as a mark of respect. Tayside Police was called to the leisure centre on Saturday after Luke had been reported missing. Detective Constable Jennifer Kielty said on behalf of Tayside Police (BBC News, 2007a, 2007d):

We are studying the CCTV images to discover how Luke ended up in the deep end of the pool. Officers have established from the CCTV that having purchased their tickets, they were seen to go to the school and club changing room area, situated to the left of the ticket booth. They both entered the main pool and stayed there until the warning had been given for all bathers to leave the pool at closing time.

When officers attended the leisure centre, the boy was found lying at the bottom of the deep end in a covered area of the main pool. Lifeguards had dived into the water and pulled him onto the poolside where they carried out CPR. He was taken by ambulance to Ninewells Hospital in Dundee where sadly he was pronounced dead.

We would like to speak to everyone who was in the pool between 16:00 and 17:00 on Saturday and ask that they come forward. We are particularly keen to talk to a couple who were pushing a child on an orange float shaped like a pair of glasses. The woman was wearing a black swimming costume and had dark coloured hair.

We are also keen to speak to a man who was with a girl aged about eight, who was in the pool at the time Luke Hutton drowned. The man we believed around at the Leisure Centre around 16:05, the same time as Luke and his mum arrived. The man had balding hair and was wearing a white T-shirt, blue jeans and was carrying a holdall. In the pool, he wore dark swimming trunks, and the girl wore a black costume with light flashes and dark, tinted goggles. The girl, who was possibly his daughter, was thought to be aged about eight and had fair, shoulder length hair and was wearing a yellow T-shirt and grey trousers. We will release CCTV images of the two potential witnesses in due course.

It is vitally important that they, and anyone else, get in touch with the inquiry team as soon as possible as they may have crucial information. While Luke’s death is not being treated as suspicious, the circumstances leading up to his death will be the subject of a police inquiry. A full report will be submitted to the procurator fiscal in Dundee in due course.

Detective Sergeant Kevin McMahon added (BBC News, 2007b; The Herald, 2007):

Whilst we are looking to speak to everyone who was in the pool between 15:30 and 17:30. I'm particularly interested in speaking to those who would have been in the pool between 17:15 and 17:30. It is entirely possible that they may have seen Luke and it is crucial that they get in touch with us.

A team from the Health and Safety Executive (HSE) has arrived at the council-owned facility to interview witnesses and check staffing levels. A Health and Safety Executive spokesman said (BBC News, 2007a):

Two inspectors were at the scene yesterday interviewing staff and looking through CCTV footage and would be there for the next few days.

Inspectors will be looking at the supervision at the pool and how many lifeguards were on duty. We want to prevent something like this from happening again. Our investigation is ongoing.

 

Charging decision

Tayside Police report was sent to the procurator fiscal (BBC News, 2008a). A spokesperson said inquiries into the death of Luke Hutton were continuing. The Procurator Fiscal said it would consider legal proceedings after it had received the HSE report (BBC News, 2008).

The HSE issued its report on 30 September 2008. Alistair McNab, HSE Head of Operations, said (BBC News, 2008b):

A thorough investigation has been undertaken involving a number of specialist staff from both the HSE and the Health and Safety Laboratory. As a consequence of our investigation, a report has been prepared and passed to the procurator fiscal. The Health and Safety Executive understands the family's desire for answers to this terrible tragedy.

The HSE served Dundee Leisure with seven improvement notices following the tragedy. Five of the notices ordered the firm to carry out a risk assessment at five of its leisure centres, and the other two notices required it to have arrangements in place for health and safety and to have a competent person in charge of safety at the Olympia Leisure Complex (SHP, 2009).

All the improvements have since been made, and it falls to the procurator fiscal to decide whether a prosecution against Dundee Leisure should be taken. The procurator fiscal decided, in early 2009, to charge Dundee Leisure Trust with a breach of s.3(1) HSWA 1974. It proceeded to trial on 17th November 2009.

 

R v Dundee Leisure Trust [2009] (17 November, Dundee Sheriff Court, Unreported)

Dundee Leisure Trust appeared at Dundee Sheriff Court on 17 November 2009, charged with a single breach of s.3(1) HSWA 1974. Dundee Leisure pled guilty. The hearing was presided over by Sheriff Richard Davidson. Elaine Taylor, prosecuting on behalf of the Procurator Fiscal, said (BBC News, 2009; Wilkie, 2009):  

There are no words to describe the horror of losing a young child under these circumstances and Gail Hutton is utterly devastated by the loss of her son.

The health and safety failings by Dundee Leisure Trust were tragically brought to life, with the result that Luke Hutton lost his life in the pool. The centre was fully staffed on the day of the accident and Luke’s mother, Gail, saw Luke only a matter of seconds before he was missed slipping from his float and drowning.

Luke, who could not swim, had gone into a deep area of the pool, known as the wave channel, and disappeared from view after entering what was described as a blind spot. She added that whilst the nine year-old-girl who was with Luke could swim and had been looking after him, the eight-year-old boy and Luke were both non-swimmers. There was no other adult in the water with them. He was found after a 40-minute search of the building by staff.

Pamela Brady, appearing as Procurator Fiscal depute, told the court that:

Luke drowned in the only part of the pool that could not easily be monitored by lifeguards. Following the tragedy, a temporary lifeguard station, which was not manned on the day of Luke’s death, was then permanently manned until the wall that had obscured the boy was taken down.

The court was told that Luke had drowned in the only part of the pool that could not be easily monitored by lifeguards. Although there was a lifeguard only a few feet away from where lay on the bottom of the pool, he could not be seen from the lifeguards allocated position.

HSE Inspector Peter Dodd also reported that serious management failings led to Luke's death. Dundee Leisure failed to have robust measures in place to ensure the safety of its clientele at all times (Moncur, 2012). An expert witness also told the court that the training for lifeguards had been inadequate.

The firm advanced in mitigation that it had no previous convictions and that following the investigation, it had appointed a health and safety consultancy to carry out risk assessments at all its leisure facilities. It has also revised its admissions policy for swimmers to ensure that a responsible person accompanies non-swimmers at all times. It has subsequently demolished the wave channel on the advice of its health and safety consultants (SHP, 2009; BLM, 2009).

Sheriff Davidson said (Wilkie, 2009):

I have to ask why Luke had to lose his life before these problems were identified. A large degree of systematic faults makes the loss all the more unbearable. There was something fundamentally wrong with the lifeguards’ training. These are major failures for which management are culpable and they must be held responsible. I fine Dundee Leisure Trust £40,000.

 

After the trial

Elaine Taylor, head of specialist prosecutors in the Health and Safety Division, said (Moncur, 2012):

The death of Luke Hutton was a tragedy which should not have happened and has had a devastating effect on those close to him. Our thoughts today are very much with Luke's mum and the other members of his family.

Although nothing will ever be able to compensate them for their loss, we hope that today's conviction and sentence can be of some comfort to them. The investigation into Luke's death was a difficult and complex one and it was essential that the circumstances should be thoroughly examined.

This was not only to ensure those who bear responsibility are held to account and that Luke's loved ones can know the truth of what happened, but also so that lessons can be learned to prevent similar tragedies in the future.

Duty holders should be aware that we will continue to work closely with those agencies who enforce health and safety legislation to identify unlawful practices that put safety at risk in our communities and to deal appropriately with those who fail to discharge the duties imposed on them.

Health and Safety Executive inspector Peter Dodd said (SHP, 2009):

Cases such as this are rare, but it illustrates what can happen when a non-swimmer is not given the full attention they require to enable them to use these facilities safely.

Dundee Leisure failed to have robust measures in place to ensure the safety of their clientele at all times. The lifeguards working at the Olympia Centre were not adequately trained to ensure that every part of the wave pool was properly supervised, particularly in relation to a potential blind spot within the area.

The HSE recognises the undoubted benefits of children learning to swim and the skills this equips them with. Cases such as this are rare, but it illustrates what can happen when a non-swimmer is not given the full attention they require to enable them to use these facilities safely.

Fighting back tears later, Luke's mum, Gail said (Moncur, 2012):

It has taken them two years to come clean about what happened to Luke and admit responsibility for his death. If the staff had done their job properly my son might be alive.

I know my boy and he's a sensible laddie. He would never go off on his own or do anything stupid. The staff wouldn't believe me, and I kept on at them to search everywhere. I even kicked a door because I was so frustrated. I wanted to scream.

It was six o'clock on a Saturday night and lifeguards didn't search for Luke properly because the staff wanted to get the place shut. They were young lifeguards, and I got the feeling they wanted to get into town as quickly as possible. I asked if they'd checked in the pool and they looked me in the eye and told me they had, which was a pack of lies. They told me categorically that they had checked the water when quite clearly they hadn't. If they'd checked properly they would have seen Luke and he may have survived.

I am grateful that Dundee Leisure Trust have now accepted their responsibility for their failures in the management and operation of the Olympia swimming pool which led to the death of Luke. Luke's death has been a tragedy for me, and his two sisters and we have all suffered terribly as a result. The staff let my son down when he needed them most.

How they can decide that £40,000 is what my son's life is worth? £40 million still wouldn't have been enough. I am glad they held their hands up over Luke's death but they had no choice, it was clear who was at fault. I have started legal proceedings to sue Dundee Leisure Trust. I want the people responsible for Luke's death to be held accountable. I am determined to make sure nothing like this ever happens again.

Every day is a battle without my son. Every time I see the pool, my thoughts go back to one year ago and I keep wondering how the lifeguards missed him. I have received a barrage of nasty comments questioning my fitness to be a mother following the death of my son. I sincerely hope that those persons will now become aware of the full facts surrounding Luke’s death and are thoroughly ashamed of themselves. Their attitude has caused me tremendous anxiety during a time when I was stricken with grief.

Their behaviour has driven me to leave the area and start a new life in England. I have bought a house and I will be moving next month. I have changed my mobile phone number and want to try to start again. I will never get over what happened to Luke but moving might help me deal with his loss better.

A spokesman for Dundee Leisure Trust said (Wilkie, 2009):

We deeply and sincerely regret the tragic loss of a young life. The impact of Luke's death on everyone involved with Dundee Leisure Trust remains as strong now as it was two years ago. Since the death we have closely examined all policies and procedures, and the physical lay-out of the pool.

Sadly, we cannot turn the clock back but since the tragedy we have closely examined all our policies, procedures and the physical lay-out of the pool to try to prevent such a terrible accident happening again.

Dundee Leisure staff at all levels co-operated fully with the Health and Safety and Crown investigation to make sure that any improvements were identified and implemented as quickly as possible.

As part of a wide-ranging review of all aspects of Olympia, we made a number of changes in co-operation with the Health and Safety Executive and a leisure industry health and safety consultant.

Our thoughts remain with Luke's family.


References (26)

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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Moncur, J. (2007). Luke’s death broke our hearts. (Daily Record, 9th Oct, 00:00). Available at: https://www.dailyrecord.co.uk/news/uk-world-news/lukes-death-broke-our-hearts-959423 accessed 11th November 2020.

Moncur, J. (2008). Mum haunted by son’s death leaves Scotland to start new life. (Daily Record, 27th Sept, 00:00). Available at: https://www.dailyrecord.co.uk/news/scottish-news/exclusive-mum-haunted-by-sons-pool-991815 accessed 11th November 2020.

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The Herald (2007). Seven-year-old drowning victim named as investigation is launched into tragedy. (2nd October, 2007). Available at: https://www.heraldscotland.com/news/12451001.seven-year-old-drowning-victim-named-as-investigation-is-launched-into-tragedy/ accessed 11th November 2020.

The Herald (2009). Dundee pool operator fined over boy’s death. (17th November, 00:00). Available at: https://www.heraldscotland.com/news/12607147.dundee-pool-operator-fined-over-boys-death/ accessed 11th November 2020.

Thompsons (2009). Pool fined for tragic drowning. (23rd November, 00:00). Available at: https://www.thompsons-scotland.co.uk/blog/31-health-and-safety/1905-pool-fined-for-tragic-drowning accessed 11th November 2020.

Wilkie, S. (2009). £40,000 fine for pool where boy, 7, drowned. (Express, 18th November, 00:00). Available at: https://www.express.co.uk/news/uk/140983/40-000-fine-for-pool-where-boy-7-drowned accessed 11th November 2020.

 

Citation: Jacklin, D. 2020. Case Summary: Luke Hutton. Water Incident Research Hub, 29 November.

 

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