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Tomlinson v Congleton Borough Council

25 March 2002
The issues

Occupiers liability – swimming.

The facts

The Defendant owned a public park in which there was a disused quarry, which had formed into a lake. The Council knew that in hot weather the lake, with its sandy beaches, was a popular place to go to swim. It was shallow and dangerous. The Council were well aware of the dangers and had put up prominent notices and employed rangers who gave oral warnings and distributed safety leaflets. Unauthorised swimming continued. In 1990, the Council had agreed to plant over the beach areas to discourage swimming. The costs of landscaping was between £10,000.00 and £15,000.00. In 1995 work had only just begun and only shortly before the Claimant had his accident when he dived into shallow water in the lake, suffering grave injuries. It was accepted that the Claimant was not a visitor but a trespasser when he entered the water.

The decision

1. The Council knew the steps that are taken to prevent people swimming and risking injury were ineffective.

2. In these circumstances the Council had a duty to carry out the planned landscaping.

3. It was in breach of its duty in failing to do so.

4. The Judge’s assessment of two-thirds contributory negligence on the part of the Claimant was upheld.

5. Lord Justice Longmore dissented powerfully on the following basis:-

(i) He rejected the view of Braithwaite QC that the mere was different to other open stretches of water because:-

(a) The Defendants encourage people to go there;

(b) The Defendants knew accidents were likely to happen;

(c) They were in the process of taking steps to eliminate those actions by landscaping. He took the view that merely encouraging the use of a site for leisure activities did not mean that the Council should have taken steps to prevent swimming unless they knew of a particular hazard other than that beyond the ordinary hazards of swimming in open water, of which in his view shallowness of water was not one.

The existence of risk and the fact of previous accidents could not impose a duty of care in itself since swimming was an inherently dangerous activity. Only if the number of accidents was significantly above the norm would it be reasonable to conclude that there was a particular hazard – following Derby v The National Trust and a Supreme Court of Canada case Vancouver-Fraser Park District v Omstead.

Comments

This is an alarming case. It is unclear that this Claimant would have been deterred even by the landscaping and introduction of reeds into the “littoral”, particularly given the description of the area by Sedley LJ as amounting “to a siren call strong enough to turn stout men’s minds”. Councils will not be greatly soothed by this comment of Sedley LJ that “if the logic of our decision is that other public lakes and ponds require similar precautions to those which were lacking at Braerton Heath, so be it”.

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