There were “utterly catastrophic consequences” because three lifeguards failed to show reasonable care towards a strong and accomplished swimmer who tragically blacked out and drowned, a senior barrister claimed.
Making his closing speech to the Newry Crown Court jury on Monday, after three weeks of evidence, prosecuting KC Liam McCollum urged the three men and eight women to apply their life experiences and common sense when they retire to consider their verdicts against the three defendants.
Submitting that the three life guards “made utterly erroneous assumptions” in relation to Christopher Rogers as he lay at the bottom of the swimming pool at Orchard Leisure Centre on Armagh, Mr McCollum argued those assumptions had lead to “utterly catastrophic consequences” when the 20-year-old athlete suffered a hypoxic black out and drowned.
“They ought to have recognised the dangers and they’re all guilty, I suggest to you, of failing to take reasonable care,” declared the senior barrister, concluding his closing speech by asking the jury to “think about it from Christopher Rogers’ point of view.”
“This was a lifeguarded pool. If he got into trouble what protection was there for him when he certainly couldn’t help himself,” he asked the jury and in answering his own question the KC added, “well, there the lifeguards – was he not entitled to the same protection as any other swimmer in that pool?”
On trial each facing a single count that being employee, they were in breach their duty to others on April 7, 2017 in that they “failed to take reasonable care for the health and safety of other persons who may be affected by your acts or omissions at work” are:
– Cathal McVeigh (35), from Dunamony Road in Dungannon;
– William Holden (26), from Unshinagh Lane in Portadown and
– James Monaghan (26), from Folly Lane in Armagh.
The jury have heard that having swam two and a half lengths of the pool underwater Mr Rogers broke the surface and then, having tragically suffered a hypoxic blackout, the 20-year-old “accomplished swimmer” sank to the bottom of the pool where he remained for just over five minutes before he was pulled out.
The jury have heard that during the time Mr Rogers was submerged, the lifeguards were aware of him and had been observing him, that McVeigh and Monaghan were engaged in conversation for two minutes and twenty seconds and that before they attempted a rescue, McVeigh had banged on the steps with a pole and had asked another swimmer to check on him, that swimmer believing that he got a “thumbs up” sign from the 20-year-old.
Tragically that “thumbs up” signal was actually Mr Rogers’ body experiencing decerebrate and decorticate posturing where his limbs moved involuntarily during a seizure brought on by his brain being starved of oxygen.
It is the Crown case that each of the defendants breached their duty of taking reasonable care by waiting too long to initiate a rescue, that the prolonged changeover of pool duties distracted them and that they “missed the signs” that Mr Rogers was in danger.
The jury have also heard however that during their training and induction, the lifeguards received no guidance about hypoxic blackouts or the signs to look for or about the dangers of prolonged breath holding and extensive underwater swimming.
McVeigh and Holden gave evidence on their own behalves last week, maintaining that what they did and the actions they took were reasonable and in line with their training as it was.
On Monday, Monaghan took the witness box and he told his defence KC Charles MacCreanor that during the two minute changeover with McVeigh the pair were concentrating on the submerged Mr Rogers.
He told his barrister that having thought about the incident many times over the years “I think we took all the care that we could,” adding that if he had been concerned at any stage “I would have done something about it but we weren’t.”
Monaghan told the jury he “considered it completely normal” for Mr Rogers to be submerged holding his breath because “it was just part of swimming training,” training which he himself had also went through previously as part of a swimming club.
After Monaghan had completed his evidence Mr McCollum made his closing speech to the jury, highlighting that the prosecution had never suggested the defendants had received training or instructions on hypoxic blackouts or decerebrate and decorticate posturing.
He submitted however that while the defence had sought to elevate this issues over training, “the key words in that phrase are black out” and he argued that concentrating on the lack of training “is of very limited assistance in determining the issues and limited assistance as to the lifeguards’ lack of action.”
Mr McCollum said he was not suggesting that a lifeguard should know why someone has suffered a blackout but that “it’s a case of common sense” to know an unconscious person needs to be removed from the bottom of a pool and common sense that it’s dangerous for someone to be submerged for more than two minutes.
Urging the jury to look at all of the evidence as a whole and to try to leave aside feelings of sympathy, the senior barrister concluded that when they do “the only fair and true verdict for all three is guilty.”
In contrast however Gavan Duffy, defence KC for McVeigh, argued that given the lack of training or knowledge about hypoxic blackouts there had been a reasonable assessment that Mr Rogers was “deliberately holding his position under the water and that he was moving in a purposeful way”.
“It certainly did not appear to be unnatural or unusual behaviour,” for the sadly demised 20-year-old, argued Mr Duffy, emphasising that McVeigh had kept Mr Rogers “under close observation.”
Despite that observation there was a “failure to recognise that he was in distress” but that failure, said the barrister, was as a result of a lack of training and a lack of awareness, not a failure to take reasonable care of Mr Rogers.
“His death was a tragedy and a catastrophe for his family,” declared Mr Duffy, “I’m suggesting to you not to extend the tragedy of this case and I’m suggesting to you that on this night, that Mr McVeigh and the other defendants were doing their very best”.
“The failure was not theirs and I’m suggesting to you that they acted reasonably in the circumstances of their training and if you think that is even a possibility, the only verdict you can return, if you are true to your oath, is one of not guilty,” he concluded.
Today, the jury will hear a final defence speech from Mr MacCreanor and trial Judge Paul Ramsey KC will direct them on the law before they consider their verdicts.
The trial continues.
