In battle of Hampstead, cold water brigade wins

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The Independent Online

They are by their own admission "a bunch of lunatics who swim in cold water in winter". And they have claimed victory for the right of people everywhere to take risks, and struck a blow against what they claim is the overweening reach of the nanny state.

They are by their own admission "a bunch of lunatics who swim in cold water in winter". And they have claimed victory for the right of people everywhere to take risks, and struck a blow against what they claim is the overweening reach of the nanny state.

The Hampstead Heath Winter Swimming Club has won its High Court case seeking permission for members to be allowed to take a daily dip in the north London ponds.

The small, determined and highly-articulate group of bathers fought bitterly against the decision of the Corporation of London, which runs the three ponds, to close them on safety grounds when they were not supervised by lifeguards. Changes to the duty hours over winter meant that many members, who were happy to swim at their own risk, would no longer be able to take the plunge.

Mr Justice Burnton said it was necessary to discriminate between cases of negligence and those where people knew and accepted the risks they were taking. In this case the law would "protect individual freedom of action, and ... avoid imposing a grey and dull safety regime on everyone".

He said the corporation was wrong in believing it faced prosecution by the Health and Safety Executive if it allowed swimming. The correct interpretation of the law came in a 2004 House of Lords ruling by Lord Hoffmann in which he found against a man injured when diving into a quarry pit. Lord Hoffmann had declared: "If people want to... dive in ponds or lakes, that is their affair."

Mary Kane, who chairs the winter swimming club, said: "This was a test case with wide implications for all open-water swimming in England, and represents another successful attack by ordinary citizens on the nanny state and the government-sponsored cult of health and safety."

Ms Kane said the club was proud to have played its part "in re-establishing an important principle of personal freedom in this country, which is taken for granted everywhere else, that responsible adults must be free to decide for themselves whether to pursue recreational activities involving an element of risk."

William Crawley, 64, who has swum in the ponds for 33 years, described it as "an exciting win for a small bunch of lunatics who swim in cold water in winter".

Mr Crawley said the case had "considerable ramifications for the degree to which people are allowed to take risks on their own responsibility."

Catherine McGuinness, chairwoman of the Hampstead Heath Management Committee, said both sides must now go away and agree a declaration allowing for swimming to take place without contravening health and safety legislation. "We are in discussion with our lawyers regarding the wider ramifications of the decision for the provision of lifeguards throughout the day," she said.

Both the Corporation of London and the Hampstead Heath Winter Swimming Club agreed to bear their own costs before the ruling.

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