Health and Safety
Hampstead Heath Winter Swimming Club –v- The Corp. of London
House of Lords
Mr Justice Stanley Burton
26th April 2005

The claimants in this matter sought authorisation from the Corporation to allow its members to swim in the Mixed Pond on Hampstead Heath on a self-regulated basis before other ponds on the heath were open to the public. Following negotiations the Corporation refused the request on the basis that they could be criminally prosecuted under Section 3 of the Health and Safety at Work Act 1974. Section 3 imposes a duty on every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment are not exposed to risks to their health and safety.

The Claimants now brought this action to judicially review the decision. Counsel for the claimants contended that Section 3 only applied to a risk created by the employer’s conduct of his undertaking. They argued that it applied to activities carried out by an employer and so did not apply to a risk created by the employer’s premises as such. Furthermore, any risk created by the swimmers would be the result of their deciding to do so with full knowledge of the risks involved. Their exposure to any risks, therefore, would not have been caused by the conduct of the Corporation’s undertaking but by their own conduct.

The Corporation argued that such a restrictive interpretation of Section 3 was inappropriate. The Corporation believed that the section was not limited to activities but applied equally to risks created by an employer’s premises. The risks, even if accepted by the swimmers would be created by the Corporation’s grant of access and the Corporation would, therefore, be liable for the creation of those risks.

Mr Justice Stanley Burton held that if an adult swimmer with full knowledge of the risks chooses to swim in the Mixed Pond then the risks he incurs are the result of his decision and are not the result of the conduct by the employer of his undertaking, and the employer is, therefore, not liable to be convicted of an offence under Section 3.