The facts

In around 1980 Congleton Borough Council acquired 80 acres of land surrounding a derelict sand quarry and laid it out as a country park, Brereton Heath Country Park. One of the main attractions of the park was the 14-acre lake created by flooding the old quarry, and fine weather always drew large crowds.

Cheshire County Council managed the park on behalf of the Borough Council and from the outset swimming was treated as a prohibited activity. Notices reading ‘Dangerous water. No swimming.’ were erected and the park rangers patrolled the area seeking to dissuade the public from swimming.

Management reports and minutes of committee meetings from 1983 record both councils’ concern at the increasing numbers who ignored the prohibition and the view of safety officers that it was only a matter of time before someone drowned. In 1990 the County Council’s water safety officer recommended the implementation of a reed-planting scheme to make the lakeside beaches less desirable, but financial constraints prevented its early implementation. Ironically, in 1995 the Borough Council allocated £5,000 to the scheme, but work had not commenced when Mr Tomlinson had his accident.

The accident occurred on the first May bank holiday of 1995, when Mr Tomlinson was 18. He ran into the water and, as he had done on many occasions before, dived. Unfortunately he struck his head hard on the sandy bottom and broke his fifth vertebra, leaving him a tetraplegic. He brought proceedings for financial compensation against Congleton Borough Council and Cheshire County Council, claiming for the loss of his earning capacity, the expense of the care he will need and the loss of his ability to lead an ordinary life.

The issue

Compensation is only payable when the injury is someone’s fault and this is what Mr Tomlinson had to prove. He claimed that Congleton Borough Council and/or Cheshire Borough Council as occupiers of the park were in breach of their statutory duties under the Occupiers’ Liability Acts 1957 and 1984.

The decision

The Occupiers’ Liability Act 1957 sets out the duties owed to a visitor and the Occupiers’ Liability Act 1984 sets out the duties owed to a trespasser.

All visitors are owed a duty to take such care as is reasonable in the circumstances to see that the visitor will be reasonably safe in using the premises for the invited purpose. Warning of a danger will not, of itself, absolve an occupier from liability, unless in the circumstances it would be sufficient to enable the visitor to be safe. The duty does not extend to risks willingly accepted by the visitor.

A trespasser is only owed a duty from the occupier where there is a risk arising from the state of the premises or out of something done or omitted to be done on them against which, in the circumstances, the trespasser may reasonably be expected to be offered some protection. If a duty arises, the occupier must take such steps as are reasonable in the circumstances to see that the trespasser is not injured on the premises because of the danger.

Initially, Mr Tomlinson claimed the status of a visitor and said that the premises were not reasonably safe because diving into water is dangerous and Congleton Borough Council had not given adequate warning of this or taken sufficient steps to discourage him from doing it. However, for many years the Council’s policy was to prohibit swimming and it argued successfully that, as swimming was a prohibited activity, once Mr Tomlinson entered the lake to swim he became a trespasser to whom no duty under the 1957 Act was owed.

Mr Tomlinson then alleged that he was owed the lesser duty arising under the 1984 Act, which meant showing that his injury was attributable to the state of the premises, or to things done or omitted from being done on them by the Council.

The House of Lords determined that diving carried an inherent risk of injury and that Mr Tomlinson had chosen to dive voluntarily as a person of full capacity. There was a risk he would not execute his dive properly and so suffer injury, but this was not attributable to the state of the premises or to things done or omitted. The Lords rejected the submission that the Council’s inadequate attempts to keep people out of the lake constituted things omitted. Things omitted meant, for instance, failing to prevent speedboats racing alongside swimmers. As there was no risk due to the state of the premises or anything done or omitted upon them, there was no risk giving rise to a duty under the 1984 Act and so Mr Tomlinson lost his case.

Because of the public interest in the point, the House of Lords went on to consider the claim as if there was a risk giving rise to a duty under the 1984 Act and the conditions required for the existence and breach of the duty.

First, there must be knowledge or foresight of the danger. The occupier must be aware of the danger or have reasonable grounds to believe it exists. The Council was clearly aware of the possibility of injury by horseplay in the shallows, although the chances of an accident were small.

Secondly, there must be knowledge or foresight of the presence of the trespasser. Again, the Council was patently aware that swimmers came to the lake.

Thirdly, it must be reasonable for the trespasser to expect protection. The Court of Appeal had proceeded on the basis that if there was a foreseeable risk of serious injury, there was a commensurate duty to do what was necessary to prevent it. Lord Hoffmann, who delivered the Lords’ leading judgment, described this as an oversimplification. The legislation requires such care as is reasonable in the circumstances. This requires an assessment not only of the likelihood and seriousness of injury, but also of the social value of the activity, the cost of preventative measures and the extent to which people of full capacity should be entitled to decide for themselves whether or not to take the risk. The competing interests need to be balanced.

Lord Hoffmann considered it will be rare for an occupier to be under a duty to prevent people undertaking activities with an inherent risk if they choose freely to do so:

‘There is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children… should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees, or some lack of capacity, such as the inability of children to recognise danger.’

Applying this reasoning to Mr Tomlinson, the Council was not under a duty to prevent Mr Tomlinson from diving or to warn him against the obvious dangers involved. This was the case whether he was a visitor or a trespasser.

Comment

The House of Lords’ ruling is robust. Landowners are ordinarily under no duty to protect visitors or trespassers against obvious dangers, especially where a duty would impose a disproportionate cost, whether social or financial. Many will regard this decision, with its emphasis on personal responsibility, as long overdue and hope that it marks a turning point in our increasingly litigious society.

That said, property owners should not be misled into thinking the decision gives them carte blanche to ignore the activities of guests, invited or otherwise. Underpinning the decision is the the recurrent phrase used in the statutes, ‘reasonable in the circumstances’. An occupier’s duties are still very real – the House of Lords has simply sought to delineate the boundaries with a firm hand.

Case references

Tomlinson v Congleton Borough Council and another [2003] UKHL 47

Source: Mayer, Brown, Rowe and Maw October 2003

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