0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

Tomlinson v Congleton Borough Council and Others, House of Lords, 31 July 2003

5 August 2003
The issues

Occupiers Liability – Swimming – trespasser

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 matter came before Mr Justice Buckley who dismissed the Claimant’s claim. The Claimant appealed.

The Defendant appealed to the House of Lords.

The decision

1. The Claimant had conceded that he was a trespasser at the point at which he went into the water. Whilst as a matter of logic it was difficult to say why the Claimant should not be owed a duty under the 1957 Act as a lawful visitor as well bearing in mind that the duty would have been to prevent him from going into the water, ie from preventing him from becoming a trespasser, that concession was in the view of Lord Hoffman, rightly made. There was no difference between a person who came upon land without permission and one, who having come with permission, does something which he had not been given permission to do.

2. The 1984 Act referred to risks of injury ‘by reason of any danger due to the state of the premises or to things done or omitted to be done on them’. Was therefore there a risk within the scope of the Act, ie a danger due to the state of the premises or to things done or omitted to be done on them? Mr Tomlinson was a person of full capacity who voluntarily and without inducement engaged in an activity which had inherent risk. He knew the lake well. Even if he had not, the Judge found that it contained no dangers, which would not have otherwise been expected. The risk arose out of what he chose to do and not out of the state of the premises. To find otherwise would be to find that any premises could be said to be dangerous to someone who chose to use them for a dangerous activity.

3. The Claimant had argued the alternative limb, namely that the risk was due to ‘things done or omitted to be done’. However, the water was safe for all normal activities. ‘In the context of the Act, things done or omitted to be done’ meant activities or the lack of precautions which cause risk, like allowing speedboats among the swimmers.

4. There was therefore no risk to the Claimant due to the state of the premises or anything done or omitted upon the premises.

5. If there had been such a risk, the next question to be considered would have been the conditions for the existence of a duty. There were 3 conditions, which had to be satisfied under Section 1(3) of the 1984 Act.

(a) Knowledge or Foresight of the Danger

The occupier had to be aware of the danger or have reasonable grounds to believe that it existed. The relevant danger had to be identified. The Judge at first instance thought it was the risk of suffering an injury through diving. The Court of Appeal regarded it as a much broader risk related to swimming. That was too wide a description. The risk of injury from diving was a different risk from the risk of drowning in deep water. Undoubtedly, the Council knew that there was a possibility that a boisterous teenager would injure himself by horseplay in the shallows. This would be sufficient to satisfy the requirement of knowledge.

(b) Knowledge of the Presence of the Trespasser

The Council plainly knew that swimmers came to the lake and the Claimant fell within that class.

(c) Was the risk one against which the Council might reasonably be expected to offer the Claimant protection?

The Court of Appeal had found that the Council was obliged to do more than it had done. The prohibitions on swimming had been ineffectual. The Court of Appeal found that there was foreseeable risk of serious injury and that the Council was therefore under a duty to do what was necessary to prevent it. This was an over-simplification. A balance had to be struck between risk, gravity of injury, cost and social value.

(i) Risk
Some 450 people drown whilst swimming in the United Kingdom every year according to the Royal Society for the Prevention of Accidents. There is therefore some risk in swimming and diving as there is in climbing, cycling, fell walking and many other such activities.

(ii)Cost
The costs had been described as £5,000.00 and as ‘not excessive’. It may not have been excessive, although the outlay had to be seen in the context of other items rated essential and highly desirable in the Borough Council budget, which had taken precedence over the destruction of the beaches for the previous 2 years.

Financial cost however was not a significant item in the balancing exercise, which the Court had to undertake.

(iii) Social Value
This was far more important. The Court of Appeal had made no reference to the social value of the activities, which were to be prohibited. To have destroyed the beach would have prevented people from sunbathing, paddling and playing with their children. This had to be taken into account when deciding whether it was reasonable to expect the Council to destroy the beaches. The mere fact that the Council’s Safety Officers thought the work was necessary, did not show that there was a legal duty to do it.

(iv) Free Will
The Claimant was freely and voluntarily undertaking an activity, which inherently involved risk. There was an important question of freedom at stake. It was unjust that harmless recreations should be prohibited to comply with what was thought to be a legal duty to safeguard irresponsible visitors against perfectly obvious dangers. A duty to protect against obvious risks exists only in cases in which there is no genuine and informed choice or in the case of employees or some lack of capacity such as children. Generally, it would be extremely rare for an occupier of land to be under a duty to prevent people from taking risks, which are inherent in the activities they freely choose to undertake upon the land. Although a Local Authority might take a paternalistic view and prefer people not to undertake risky activities, the law did not require it to do so. Local Authorities and other occupiers of land are ordinarily under no duty to incur social and financial cost to protect a minority or even a majority against obvious dangers.

6.Generally, (Lord Hobhouse of Woodborough) it was not and should not be the policy of the law to require the protection of the foolhardy or reckless few to deprive or interfere with the enjoyment by the remainder of Society of the liberties and amenities to which they are entitled. The law did not require trees to be cut down because youths might climb them and fall. Nor did it require the coastline and other beauty spots to be lined with warning notices. It did not require that attractive waterside picnic spots be destroyed because of foolhardy individuals who chose to ignore warning notices and indulge in activities dangerous only to themselves. Appeal Allowed.

focus on...

Legal updates

Contingent loss in negligence claims

Contingent loss is relevant to limitation; specifically, the date at which a claimant’s cause of action accrues for the purposes of a claim in the tort of negligence (as many claims against professional advisers are framed).

View

Legal updates

Legal and regulatory monthly update - September 2019

The latest update covering delegated authority, insurance product development, the senior insurance managers regime, data protection, operational control frameworks, Lloyds market, and horizon scanning.

View

Legal updates

Kuoni referred to the CJEU by Supreme Court for clarification - possible impact on breach of contract, vicarious liability and assumption of responsibility claims for sexual abuse and assault

We were hoping to be able to give you some interesting insights following the judgment of X v Kuoni Travel Ltd but that will have to wait for another day.

View

Legal updates

The disappearance of LIBOR

Companies should undertake a comprehensive review and audit to identify those products and legacy contracts that are LIBOR-linked and carry out an in-depth risk assessment of discontinuation. Where possible, companies should look at appointing an individual to oversee the programme.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

mailing list sign up



Select which mailings you would like to receive from us.

Sign up