Very many accidents happen at swimming pools of which some result into serious injuries or death. The question that one asks then is who should be held liable for such death or injuries, is it the property owner, caretakers or other workers/employees?
Swimming pool owners both public and private must be aware of the risks and responsibilities associated with ownership of a swimming pool.
In Uganda most people who own swimming pools at their homes take responsibilities lightly which results into a serious personal injury or death of the users even when they are trespassers. Most people think that these pools are safe unless one misuses it for instance swimming without proper attire or gear, swimming while intoxicated and running around it aimlessly. These may be a risk that’s why owners tend to put up notices discouraging the above vices and craft them in a sense that they are not liable to injuries in case a user has violated such rules.
Property owners have not realized that most accidental drowning cases occur when the swimming pool is not being used and children are often victims of such accidents. Children always wander around pools and it takes a blink of an eye for them to drown. In most cases they can’t even scream for help they die silently. Having supervisors around the pool is not necessarily enough because they become more relevant when the swimming pool is actively being used but one ought to foresee the possibility of a child wandering into the pool area without consent or knowledge of caretakers.
Property owners with swimming pools should ensure that the pool is fenced off with self-closing gates and their latches high enough for the child to reach, they should also procure pool covers and also ensure that rescuer equipment is kept around the pool and in good working condition. One can also install a pool alarm that can alert the pool owner when the surface of the water has been disrupted. All these safety measures may seem to be expensive but then this should not be a pretext for not having them in place.
The owner of the pool is the person squarely responsible for providing a safe environment for the children and adults who use the pool and any other person who may access the pool. Owners of swimming pools especially those in public places tend to rely on posted warning signs such as ‘’Swim At Your Own Risk “to protect themselves against a law suit if someone is injured or drowns in their pools. It’s very likely that a claim will be filed against them no matter what type of exclusive signs are posted.
If a home owner has a pool and does not take adequate measures to prevent unwanted or unsupervised individuals from gaining access to the facility they can end up assuming liability if an accident occurs. Under the law of tort which is applicable in Uganda .it provides that an occupier must take such care as in all the circumstances of the case is reasonable to see that all people having access to property irrespective of whether they are visitors, trespassers other occupiers will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there.
The duty of care is based on protecting users of the facility rather than removing hazards altogether this implies that the warning signs form a key element of fulfilling the duty but adding a warning to a hazard will not absolve an occupier of liability, warnings only fulfill the occupier’s duty of care if they enable a user to be reasonably safe.
In the event that injury or an accident occurs to any person which may also result into death, caretakers, servants or other workers in the homes where such a pool is established are arrested and charged may be with criminal negligence or negligence under civil but the owner of the property is not charged it is very wrong.
The owner of the property in such circumstances should also be held liable because he or she could have failed to put preventive measures in place or failed to foresee the happening of injury or death. Sanctioning charges against servants or employees of the swimming pool owner without also holding the owner liable would be selective prosecution.
The writer is a Programme Officer
Pro-Bono Department – Uganda Law Society & a Practicing Advocate.