NINE YEARS ON III: 2015: WITNESS STATEMENTS – WHO SAYS YOU’LL WIN NOTHING WITH KIDS
My, highly personal, selection of posts from each year moves on to 2015. Here we look at a blog post from February 2015 about the decision in Woodland and Maxwell. This is a case that was subject to much interlocutory wrangling, with trips to both the Court of Appeal and Supreme Court, on different issues, before the matter even reached trial. The claimant succeeded, on the basis of evidence given by children and a neat handwritten note made by a 10 year old.
“As the trial progressed my confidence in the reliability of the basic narrative of the children’s accounts strengthened. By contrast, the reliability of the evidence of three DSS teachers diminished”
THE POST FROM 2015
The case of Woodland -v- Maxwell  EWHC 273 (QB) is almost a procedural epic. It has involved one trip to the Court of Appeal to allow a withdrawal of admissions and a further trip to the Supreme Court on a different issue. However the claimant ultimately succeeded because of good old fashioned evidence, the quick thinking of parents and neat handwritten note from a 10 year old. (Along with, I am sure, the brilliance -and obvious tenacity- of her legal team.)
The case also demonstrates the court’s suspicion of witness statements, served late, that appear to give “new” evidence and “fill gaps” in the defendants’ case.
The claimant was seriously injured on the 5th July 2000 during a swimming lesson. She was then aged 10 and swimming with a group of her own age. The court was determining the issue of whether the lesson was properly supervised.
Investigations were made and statements taken at various stages. However there was one piece of brilliance.
- Meanwhile, another pupil in the pool, Kayleigh Teeboon, told her parents what had happened at school when she returned home. Her parents were so concerned at what they heard that they invited her to write down her experience that night. She did so and produced a neater version of the same account the following day (Appendix C). She also prepared a detailed sketch plan of Annie’s whereabouts in the pool.
The investigations continued but were not wholly satisfactory.
- Other children also recorded what they remembered in the weeks and months after the accident. The children’s statements led to a further HSE review and a second report that reached more critical conclusions as to the safety procedures adopted. Unfortunately, if the first investigation was defective in that it did not take into account the views of the children, the second seems to have been conducted without exploring with the DSS teachers what the children were saying.
- As a consequence of all this there are gaps in the evidential picture. There is no scaled plan of the pool (that was demolished in 2011). Each of the witnesses who gave evidence has had the disadvantage of recollecting events that happened within minutes many years ago
THE DISPUTED EVIDENCE
The other children at the pool gave evidence based on their (relatively) contemporaneous accounts. The defendant tendered a new witness statement, giving a different version of accounts, at the start of the trial.
- The claimant relied on the contemporaneous accounts of Kayleigh, Ashleigh and Katie that they had seen Annie in difficulties in the water, and variously described her bobbing up and down, with a white face and blue lips. Two of them had tried to effect a rescue and had brought her body to the edge of the pool. Kayleigh’s sketch plan had placed Annie at the third position of the four spaces in the two metre double lane when about to enter the water. If this was right and she had been swimming straight ahead for the first 16 metres, she had somehow moved one and half metres towards the poolside when Ms Burlinson saw her. All of this would have added an un-quantified further period of time before Ms Burlinson came upon her. Kayleigh and Ashleigh claim that they had shouted and otherwise unsuccessfully sought to attract her attention. Kayleigh said that the lifeguard (which in context meant Ms Burlinson the swimming teacher) had not responded because she was deep in conversation with another adult. Ashleigh said that no one heard because it was noisy in the pool.
- Ms Burlinson disputes that the children ever rescued Annie or were shouting to attract her attention or that she was in conversation with another adult. In her 2000 statement she stated that the lesson got under way by 10.48. She thought that Annie was in the third wave to enter the water and was in the water only 10 to 15 seconds when she spotted her approximately halfway down the pool. In her evidence she said Annie was in the water for seconds, and she adhered to the assessment of 15 seconds. She reached this conclusion by inference from where Annie was when she encountered her. When she obtained no response from Annie, she lifted her chin onto the ‘scumline’ on the pool perimeter and with her free hand blew her whistle three times. After a pause for a response she shouted across the pool to Zoe Dean. Zoe Dean walked from midway on the right hand side round the shallow end of the pool Ms Burlinson (approximately 44 metres). Ms Dean was a number of months pregnant at this time and estimated the journey took about 40 seconds. A few moments later Frank Palmer attended and CPR was administered. It seemed likely that whilst this was going on a member of his staff had called for the ambulance.
- It was common ground that Debbie Maxwell never mounted the lifeguard chair that session. In the May 2011 defence filed on her behalf, it was contended:-
i. No lifeguard was required at all as this was a programmed teaching session and not a general public session.
ii. Sufficient supervision could be afforded by the swimming teacher.
iii. At 10.45am the sun was high in the sky making it difficult to see in to the water. The temperature on the chair was oppressively hot. For both reasons it was reasonable for the lifeguard to mitigate the effect of the sun by patrolling on the poolside.
iv. At the time of the accident Ms Maxwell was on the (right hand) side of the pool scanning when a teaching assistant alerted her to the area where Paula Burlinson was and inquired if there was a problem.
- At the start of the trial Ms Maxwell’s team tendered a further witness statement from her that gave rather a different picture. She now stated that she was not in the main pool when Ms Burlinson’s class started. She had been the teacher at the learner pool at the 10.15 am session and she had waited for Julie Martin to relieve her before entering the main pool through the corridor. As she came into the main pool area, she was aware that pupils from Ms Burlinson’s class were already in the water. She started scanning the pool from the shallow end, which was not the best observation place, and she walked to the lifeguard’s chair on the right hand side of the pool intending to mount it. She had not had time to do so before her attention was drawn to the incident on the other side of the pool.
THE CONTEMPORANEOUS ACCOUNTS AND DOCUMENTARY EVIDENCE
The judgment also shows the importance of the contemporaneous accounts and documentary evidence. It also shows how the judge dealt with the changing evidence and statements given on behalf of the defendants.
- By reference to Professor Perkins opinion set out in  above, I am satisfied that Annie was in the water for at least 50 seconds and was in difficulty taking in water for at least 30 seconds. I recognise that this in part depends on the reliability of the children’s accounts to be considered below, but once a primary cardiac event is discounted as the reason why she stopped swimming and got into difficulties, lack of oxygen caused by taking in water and failing to breathe is the only other explanation of her injuries. The continuum described by Professor Perkins will take some seconds to progress through, whatever point was reached by the time Ms Burlinson held her airway above the water.
- The stark fact is that this was not noticed by Ms Burlinson, who was apparently teaching her group only a few feet away, or by Ms Maxwell who was on lifeguard duty that day and whose role in scanning the pool to ensure that children were safe was paramount.
- On any basis, I conclude that Ms Burlinson was wrong in her estimate, that Annie had only been in the water for 15 seconds. I recognise that as a swimming teacher she has to keep her eyes on some 25 children in all: some of whom were waiting to enter the water; some were swimming and some getting out at the end of the pool. She may well have had to deal with children leaving the pool prematurely. However, whilst all this might explain some modest delay in identifying a child in difficulties, she offers no explanation of why she failed to spot Annie for as long as 20-30 seconds.
- Equally, I can identify no reasonable explanation why Ms Maxwell failed to spot that Annie was in difficulties during this same period. If she is right that Zoe Dean’s class had not started when she first entered the pool, her attention would have been focused on Ms Burlinson’s class. She says she saw that some children were in the water. She walked the 26 odd metres from the passageway on the poolside to the lifeguard’s chair on the right; this would probably have taken 20 seconds. If a scan is supposed to be completed in 10 seconds she could have made two such scans in this time.
- Her suggestion that Ms Burlinson’s class had started before she entered the pool is a novel one. It is not mentioned in her July 2000 statement given to Mr Palmer; her September 2000 statement to the HSE inquiry; her signed and corrected statement made in October 2001 in response to the claim brought against the STA; her April 2010 account given to Ms Sell-Peters; her detailed witness statement for trial made in September 2010; or her May 2011 defence.
- She can identify some support for this contention from Zoe Dean, who agreed with it when cross examined. However, Ms Dean had similarly never mentioned anything to this effect before from 2000 to 2011 when she gave her account. I cannot accept their explanation that both were merely confining themselves to questions asked of them and did not consider the late arrival of the lifeguard/premature start of the lesson, something to be volunteered either as relevant to the issues being investigated by Mr Palmer and the HSE or those arising in this claim.
- Ms Maxwell accepted that she was aware that lessons had started before a lifeguard arrived on occasions before July 2000 and Mr Palmer had raised this as a practice that should not continue. Further, both would have been aware by the time they made their statements that the first HSE inquiry made a recommendation that lessons should not start before the lifeguard was in the chair.
- I conclude that there has been a remarkable departure from the second defendant’s pleaded case as set out at  above. Of the four points, the first two have been abandoned as flagrantly contrary to the operating procedure at this pool as described by Frank Palmer. The third point was abandoned in the account given by Ms Maxwell in her evidence. She told me that she was walking to the lifeguard chair intending to sit on it as the best point to observe the children in the pool. It was not, therefore, contended that either glare from the summer sun or oppressive heat made the chair unsuitable as the vantage point for scanning on that day. The consensus between the defence experts and Mr Palmer, that the lifeguard did not need to be remain in the chair the whole time, has thus been overtaken by this new account of events. In substance, Ms Maxwell now says that she was not deciding to scan from the poolside because she thought that was the best place on the day, but because she had not had time to get to the chair.
- I cannot accept that Ms Maxwell was prevented from adequately performing her duties as lifeguard because the class had started early when she was not present. If that had been her case, she should and would have spelt this out to others, not least her legal team, many years before hand. I am satisfied that the shift in her account is not explained by some recent jog of her memory, but the recognition that the timing evidence made her previous account untenable.
- Ms Burlinson disputes the assertion that she started her lesson prematurely and says she did not permit the children to enter the water until Ms Maxwell had entered the pool but did so as soon as she entered. Ms Maxwell may well be right that she was at the shallow end of the pool and not by the lifeguard chair when this lesson started. Scanning from this position may have been less effective than from half way down the length of the pool; however there is nothing in the evidence to suggest it was not possible.
- If she had considered that she could not effectively scan when moving from the shallow end to the preferred point half way down the right hand side of the pool’s length, she could have said so on the day or shortly after. I do not accept that she was powerless to do anything about a premature start to the lesson once she became aware that the lesson had started before she reached the chair. Her responsibilities would have entitled her to blow her whistle to stop more children getting into the water until she was in the most effective position to scan the water. She was the designated lifeguard and had the relevant training whilst she knew Ms Burlinson did not. She may not have been the team leader on the day but she accepted that she was the informal coordinator on safety issues and the safe procedure laid down by Basildon. She signed the Accident Form on 6 July 2000 as ‘the person involved in the incident’ although the contents of the form were populated by Mr Palmer from the information obtained from the DSS teachers.
- In any event, if the children only entered the water when Ms Maxwell was at the shallow end of the pool, and it took 20 seconds for her to walk to the chair, she would have arrived there by the time that the claimant had swum the 17 metres to the point half way down the pool where she started to have difficulties. An experienced lifeguard like Ms Maxwell would have had ample time to scan effectively from the poolside or the chair during the 30 seconds during which the near drowning process was underway.
- Further, I am satisfied that Annie’s fellow pupils did encounter her in the water in an advanced state of difficulties and attempted to rescue her and consequently she had stopped swimming for longer than the minimum period of 30 seconds. I reach this conclusion for the following reasons:-
i. Mrs Holt received an account of attempted rescue and taking Annie to the side of the pool shortly after 11.00 of the morning of the incident (Appendix B).
ii. The triage notes in the Accident and Emergency Department of Basildon Hospital were completed at 11.10. They record:
‘swimming for 5-6 minutes when she suddenly stopped. Friend swimming i/c her said her head (?) started to shake and then she went white .. blue lips. Help was called for.’
We do not know who gave this information. Annie was unconscious. The children were being taken back to school. It is possible that a school teacher may have attended hospital and supplied this information. It suggests that very early on a child was referring to blue lips. A very similar version is recorded in the triage notes at 11.50:
‘according to friend head started shaking and face went white and lips went blue. Friend called for help’
iii. The medical records also disclosed a note prepared by Dr Khalifa the Paediatric Registrar at Basildon Hospital (untimed) in which he records a conversation he had with Mr Palmer. Some of the information is derived from the statements he obtained from the swimming teachers but he is also recorded as saying:
’10 seconds swimming shaking and head going forward, the friend behind called the swimming teacher who took her out of the water in less than 10 seconds.’
Mr Palmer recalled the conversation but could not say who provided the information quoted that does not appear in the statements. He would have no knowledge of his own, and had not spoken to the children. The overwhelming inference is that this information emerged from the initial collective conversation he said he had with staff before the Appendix A statements were written up.
iv. Annie’s position when observed by Ms Burlinson, and her starting point as recorded by Kayleigh, indicates that she had moved one and a half metres (over four feet) to the poolside. Such movement cannot be explained by Ms Burlinson but is consistent with the children having brought Annie to the side of the pool as Ashleigh told Mrs Holt and Kayleigh recorded in her statement that evening
v. Kayleigh’s contemporary statement records Annie’s face under water as being white with her lips black. Ashleigh’s statement made somewhat later in July 2000 records ‘Annie did not seem right and her lips went blue and her face was very white’. Katie in her statement made in 2000 records ‘her head was bobbing up and down then I saw going under and deeper in the water’. Professor Perkins regards these as pertinent descriptions of the near drowning process and lack of oxygen. It is improbable that the children invented these descriptions.
vi. Other children made written statements to their parents or others supporting parts of these accounts. There are also differences.
vii. Understandably Ashleigh and Katie could add little to their statements when they gave evidence. Kayleigh was firm in her recollection of core details and the reasons why she recorded them so promptly.
Taken together this is an impressive body of contemporaneous or near contemporaneous evidence of the children having witnessed a school friend in difficulties and attempted to rescue her.
THE CLAIMANT’S EVIDENCE GOT BETTER AS THE DEFENDANT’S EVIDENCE GOT WORSE
- As the trial progressed my confidence in the reliability of the basic narrative of the children’s accounts strengthened. Each of their accounts seemed to me to have been a conscientious attempt to recollect what was, undoubtedly, a traumatic event. By contrast, the reliability of the evidence of three DSS teachers diminished. All three added details that were not previously mentioned. In my view, each gave some implausible explanations for omissions in previous statements. Ms Burlinson made assertions of fact that, when explored, transpired were based on debatable assumptions.
NEGLIGENCE FOUND ON THE BASIS OF THE ESTABLISHED FACTS
The judge found that the defendants had breached their duty and were negligent.
READ THE STATEMENTS
The judgment contains the contemporaneous witness statements in an Appendix. Appendix C – the neat handwritten version of Kayleigh Beeboon written on the day of the accident is particularly telling.