Sarah Paneth on local authorities' liability for poor design. Sarah Paneth is a barrister at No. 1 Serjeant's Inn.

In Davies v Wyre Forest District Council, Judge Alton held that Birmingham District Council which was responsible for the design, construction and operation of a swimming pool was liable following an accident involving catastrophic injuries to a young man who fell from a ledge set into the side of the pool as he was trying to get out. The issue of contributory negligence was not raised.

The judge held that, despite the assertion of the defendant that the ledge was a safety feature, it was in fact unsafe. The design of the ledge was unique in that it allowed the defendant to use the pool as both a leisure pool and a conventional pool.

By the use of the ledge, the defendant alleged that the high freeboard required to accommodate the peaks of waves created by a wave machine, could be combined with a resting place and means to access and egress the pool.

Further, the ledge could be used as a diving platform so that the pool could be used as a conventional pool for races.

The case, which was heard on 29 July 1997, is of interest for two reasons. First, it involved consideration of a unique feature (described as "innovative" by one of the defendant's experts).

The judge was critical of the defendant's failure to take specialist advice before its introduction and stated that one might reasonably expect documentation concerning debate on the merits of its inclusion. There was none.

Having found as a fact that the ledge was unsafe, she went on to criticise the failure to monitor its safety by systematic review of the accident statistics and to invite the architect responsible for its design to review its safety or purpose.

Second, it is the first case in which an accident involving a fall or dive into a pool has resulted in a finding of 100 per cent liability. While unusual on its facts particularly because the ledge was an original design it highlights the importance to a local authority of seeking specialist advice in design and of monitoring and reviewing accident statistics to ensure that their continuing duty is not breached.

The importance of an independent examination of safety statistics by any expert called to speak was also emphasised. The failure of the defendant to provide full discovery prevented the plaintiff's experts from carrying out a full analysis, but it was clear that the defendant's experts had carried out no independent assessment at all.