The legal duty of pool lifeguards

Today’s question is about pool lifeguards. My Queensland correspondent asks:

(1) What is the legal duty, (if any), of lifeguards to be attentive to the safety of pool users. Specifically is there a legal requirement lifeguards must have their eyes focussed on (1) pool users, (2) the surface of pools and (3) under the pool surface including to the bottom of the pool AND is there a legal requirement that the focus of lifeguards must not deviate away from these three areas for more than a set time, (eg 10 seconds), or a specified time, (eg the time it takes for a person to be in danger of inhaling water into their lungs).

My question is prompted by one of my, (more experienced), colleague lifeguards saying to me that there is a legal requirement that lifeguards must keep their eyes focussed “on the pool” whereas the management of our pools states that our job description requires lifeguards to perform other duties concurrently with lifeguarding including:

• checking that sauna users take towels with them into the sauna;
• check that sauna users are wearing wristbands showing that they have paid for sauna access;
• check that children under 10 years are wearing wristbands colour coded to their age above or below 5 years;
• check that adult supervisors of children under 10 are focussed on their child and not their mobile device and “educate” transgressing adults;
• check that pool users of all ages do not stay underwater for more than 5 seconds and “educate” transgressing pool users;
• change pool lane ropes to suit different pool uses including “water exercise classes” versus “various speed lap swimming lanes”;
• picking up leaves, paper, food, ‘band aids’ from the pool surrounds.

These duties necessitate lifeguards focussing their thoughts and eyes away from the pool and pool users for varying times from 5 seconds to over 25 seconds.

(2) What is the legal duty, (if any), of lifeguards for the safety of sauna users. Specifically, is there a legal requirement for pool user lifeguards to also watch over the lives of sauna users, particularly sauna users who disregard displayed sauna use rules including:

• do not exercise in the sauna;
• sit on a towel in the sauna;
• do not stay in the sauna for more than 15 minutes

and/or sauna users who do not follow internet published sauna advice such as https://explore.globalhealing.com/7-dangers-of-the-sauna/ or https://betterhumans.pub/a-guide-to-using-sauna-to-increase-your-health-and-longevity-4c68d7739132.

The law

There are no specific laws to answer these questions, so the answer has to come from general principles. The operator of the pool – the person conducting the business or undertaking – has both statutory and common law duties to take reasonable care for the safety of those that come into the pool.  Pool users will include people of different physical and intellectual capacities, different ages, different English language skills (whether English is their first language or not) and differing swimming capacities and all of those variations must be considered. 

The Work Health and Safety Act 2011 (Qld) s19(2) says the PCBU has a duty to ‘ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking’. 

It is axiomatic that the occupier of the premises – the pool – owes a common law duty of care to those that come to use the pool that is, ‘a duty to take precautions against a risk of harm’.  The Civil Liability Act 2003 (Qld) s 9(1) says:

A person does not breach a duty to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

Although expressed a negative statement – ie when a person is not liable rather than when they are – we can infer that a person does breach a duty to take precautions if they fail to take precautions that a reasonable person would take in response to a foreseeable and not insignificant risk.

The obvious risks with respect to a pool and sauna is the risk from drowning and the risks listed on the websites referred to about the dangers of sauna use.  When considering what a reasonable person would do in response to those risks a court will:

One way to avoid the risk of drowning in a pool is to close the pool or have very little water in it. But there is ‘social utility’ in having pools, and sauna’s, available.  So simply closing the pool is not a reasonable response to the risk. If we put that option aside, and if we limit the discussion to the pool (not the sauna) the probability or likelihood of someone getting into difficulty and drowning is quite high.  The Australian Institute of Health and Welfare reports that in 2020-21 there were 570 hospitalisations and 225 deaths from drowning.  29% of those hospitalisations and 1.6% of the deaths arose from incidents in pools.  Presumably the death and injury rate in pools is relatively low because of the precautions taken with respect to pools including compulsory fencing of private pools and the use of lifeguards and supervisors in public pools.

The likely seriousness of any harm is obvious – drowning is a fast and significant cause of death and periods of oxygen deprivation, if not fatal, can lead to permanent and debilitating brain injury.

The risk of drowning is not, however, the only risk at an aquatic facility. People can slip and fall, and as my correspondent has noted, there may be significant risks to sauna users.  Lifeguards are presumably employed or are at least available to save anyone’s life – whether they have drowned or had a cardiac arrest in a sauna.  If a sauna user collapsed it would be part of the lifeguard’s duties to render assistance. A lifeguard could not, reasonably, refuse to provide assistance because the person was not in the pool or failed to take reasonable care for their own safety. The lifeguard, like the PCBU and every employee, has a duty to help look after the health and safety of everyone at their workplace (Work Health and Safety Act 2011 (Qld) s 28).

For guidance on how to manage risks at a pool see WorkSafe Queensland Safety at swimming pools (20 December 2021) and Workplace Health and Safety Queensland Managing risks at publicly accessible pools (2015). One way to mitigate the risk of drowning and other injury and death is to employ lifeguards/first aiders/facility supervisors. It is up to the PCBU/employer to determine what are the duties of people they employ as lifeguards and to ensure there is a safe system of work to deal with all the risks at the workplace (Work Health and Safety Act 2011 (Qld) s 19(3)(c)).

In deciding what is a ‘reasonable’ response to the various risks inherent in a pool and sauna complex, a PCBU/pool operator would look to professional standards. Royal Life Saving Society Australia (RLSSA) publishes Guidelines for Safe Pool Operations (but these are only available for a fee so I cannot comment on the specific guidelines).  The RLSSA make available their document SU 1.01 Bather Supervision (1 July 1996).  That document says, amongst other things, ‘Lifeguards should be in a position to maintain supervision of the water at all times.’

It cannot be the case that every lifeguard must ‘must keep their eyes focussed “on the pool”’ at all times because there are other duties and lifeguards may have to step away to take a break etc. So the ‘rule’ would have to be that there must be sufficient lifeguards ‘in a position to maintain supervision of the water at all times’ taking into account the other duties the lifeguards are tasked to perform and to allow staff rotation and breaks.

Lifeguard training included training in competency SISCAQU006 Supervise Clients in an Aquatic Facility or Environment (see https://www.lifesavingtraining.com.au/course-details/?course_id=91107&course_type=w).  That unit has been replaced with SISCAQU019 – Supervise patron safety in aquatic locations (Release 1). The performance criteria for this unit includes:

2.1. Use scanning and patrolling strategies to monitor patron activity and behaviour in venue areas and in the water.

2.2. Monitor parent or carer supervision of children according to organisational supervision and risk management procedures.

2.3. Monitor activity of patrons at risk and those with special needs, according to organisational supervision and risk management procedures.

2.4. Identify hazardous patron behaviours that pose a risk to the individual and other patrons.

2.5. Inform patrons of unsafe behaviour and clearly, courteously and constructively provide information about safety rules to support compliance and safety.

Discussion

The thinking behind modern Work Health and Safety legislation is that each PCBU must do their own risk assessment and determine how they meet their obligations considering the unique features of their own business.  The legislation has moved away from strict rules – a one size fits all list.  So, there is not a ‘law’ that says ‘lifeguards must have their eyes focussed on (1) pool users, (2) the surface of pools and (3) under the pool surface including to the bottom of the pool AND … the focus of lifeguards must not deviate away from these three areas for more than a set time, (eg 10 seconds), or a specified time…’

In the worst-case scenario of a patron’s drowning death, we would expect that an inquiry by police, WorkSafe or a court action for compensation would explore the procedures at the particular pool to determine if the response to the known risk was ‘reasonable’.  Asking lifeguards to perform other supervisory tasks would appear to be consistent with the training module SISCAQU019. Whether they should be performing those duties would depend on questions such as how many lifeguards are on duty – is supervising the sauna leaving the pool unsupervised or do lifeguards rotate through various duties in order to keep alert?  If they are talking to pool users, are they still able to see the pool or are they required to be in areas away from the water?

The PCBU also has an obligation to sauna users, including an obligation to supervise the sauna and to warn users if they are using the sauna in a way that is exposing them to danger.  Whether supervising the sauna is part of the lifeguard’s duties is a matter for the PCBU and the terms upon which the lifeguards are employed.  A PCBU could employ a dedicated sauna supervisor, or lifeguards some of whom are allocated to the pool and some to the sauna or could task its lifeguards to supervise both the pool and the sauna.  What is reasonable, to return to the points above, would depend on factors such as the size and design of the facility, the number of lifeguards employed, the number of patrons etc. 

Conclusion

There is no law that says specifically how lifeguards must perform their task though there may be standards set out in documents such as the RLSSA Guidelines and training materials.  The law says the conduct of the lifeguards and the PCBU that employs them must be reasonable. It is up to the PCBU to determine whether they employ cleaners, supervisors and lifeguards whose only task is to watch pool users, or whether lifeguards have more general safety duties such as those described.   If the PCBU’s response to the risk is not ‘reasonable’ then the PCBU may face prosecution for breach of the WHS Act or negligent manslaughter or may be liable in a civil claim for damages. 

As the law quoted above shows, what is ‘reasonable’ depends on the consideration of many factors. If lifeguards feel that their duties overstretch them so they cannot keep a reasonable eye on pool users, they should raise that with their employer.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.