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   Case summaries      Tomlinson v Congleton Borough Council


Tomlinson v Congleton Borough Council [2003] 3 WLR 705  House of Lords

The defendant owned Brereton Heath Country Park. It had previously been a sand quarry and they transformed it  in to a country park and opened it up for public use. The defendants had created a lake on the park which was surrounded by sandy banks. In the hot weather many visitors came to the park. Swimming was not permitted in the lake and notices were posted at the entrance saying “Dangerous water. No swimming”.  However despite this, many people did use the lake for swimming. Rangers were employed and on occasions sought to prevent swimming but some of the visitors would be rude to the rangers’ attempts to prevent them and many continued to swim. The claimant was injured when he dived into shallow water and broke his neck. At the Court of Appeal it was held that he was a trespasser despite the repeated trespass and inadequate steps to prevent him swimming. They also stated that the warning signs may have acted as an allurement to macho young men. The Court of Appeal was of the opinion that since the introduction of the Occupiers Liability Act 1984, the courts should not strain to imply a licence. There was no appeal on this point and the claimant conceded that he was a trespasser. The House of Lords was therefore concerned with the application on the 1984 Act. The Court of Appeal had held that the council were liable but reduced the damages by 2/3 under the Law Reform (Contributory Negligence) Act 1945. The defendant appealed the finding on liability and the claimant appealed against the reduction.

House of Lords held:

The Council were not liable.

No risk arose from the state of the premises as required under s.1(1)(a) Occupiers Liability Act 1984. The risk arose from the claimant’s own action. He was a person of full capacity who voluntarily and without pressure or inducement engaged in an activity which had an inherent risk. Even if there was a risk form the state of the premises, the risk was not one against which the council would reasonably be expected to offer the claimant some protection under s.1(3)(C). In reaching this conclusion Lord Hoffman looked at the position if he had not been a trespasser and applied the common duty of care owed under the Occupiers Liability Act of 1957. He was of the opinion that there was no duty to warn or take steps to prevent the claimant from diving as the dangers were perfectly obvious. This was based on the principle of free will and that to hold otherwise would deny the social benefit to the majority of the users of the park from using the park and lakes in a safe and responsible manner. To impose liability in this situation would mean closing of many such venues up and down the country for fear of litigation. He noted that 25-30 such fractures occurred each year nationwide, despite increased safety measures the numbers had remained constant.

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