UK: House of Lords Reviews Duty of Occupiers

Last Updated: 2 September 2003

In this bulletin we consider the recent decision of the House of Lords in Tomlinson v Congleton Borough Council [2003] All ER 554 in relation to occupiers liability.

The Facts

In 1995 the Claimant, an 18-year-old male, suffered severe injuries after running out into a lake in a country park owned by the Defendant council and executing a dive in such a way that he broke his neck rendering him tetraplegic.

The lake had been created by flooding an old sand quarry, and had beach like banks that attracted many people, including families with children, during hot weather. Whilst there were allocated places around the lake for windsurfing and canoeing there was a no swimming policy. In addition to handing out leaflets to park visitors explaining the dangers, there were also signs both at the entrance to the park, and around the lake saying "Dangerous Water. No Swimming". However, these were largely ignored and the efforts of park Rangers to try and get people out of the water appear to have been futile.

Following 3 cases of near drowning in the summer of 1992, the Council commenced investigations into the various ways to dissuade people from using the lake to swim in. It was not however, until 1995 after a further investigation which concluded "we have an average 3 or 4 near drownings every year and it is only a matter of time before someone dies" that the budget to carry out measures proposed in 1992 was allocated. The work was about to commence when the accident happened.

The Allegation

The Claimant sought to recover damages under the Occupiers Liability Acts of 1957 and 1984 by alleging that the Defendant had breached its duty of care by failing to ensure that their premises were in such a state as to be reasonably safe, because despite knowing that people were swimming in the lake the Council had not given adequate warning of the risks of doing so, or taken sufficient steps to prevent or discourage it.

The Law/Issues

(i) The Occupiers Liability Act 1957

The Occupiers Liability Act 1957 sets out the duty of care to be imposed upon an occupier in respect of lawful visitors. The Claimant conceded that upon entering the water he became a trespasser because there were notices specifically stating that there should be no swimming. As a consequence of this, the questions as to whether or not a duty arose and whether the Council had discharged it fell to be assessed under the 1984 Act.

(ii) The Duty of Care under the 1984 Act

Under the 1984 Act the Council could only be found to have a duty of care if they were aware of the danger (or had reasonable grounds to believe it existed), and that the Council knew that someone could be or was in the vicinity of the danger and finally, that the risk was such that they could be expected to offer some sort of protection against.

If a duty under the statute was established then the Council would be required to have taken such care as was reasonable in all of the circumstances of the case to see that the Claimant did not suffer an injury whilst swimming.

This duty would however, be discharged if the Council had taken reasonable steps, to warn of the danger or discourage the Claimant, and other visitors to the park, from swimming. It is also expressly stated in the 1984 Act that no duty is owed to a person in respect of risks willingly accepted by that person.

The Decision

At first instance the Judge found that the Claimant was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity that had an inherent, and obvious, risk of injury. Further, the lake was not found to be in any way special in its configuration and held no hidden dangers, so the signs put up by the Council to warn against the danger and discourage persons from taking the risk were sufficient. Consequently the Judge found against the Claimant, who appealed.

Court of Appeal

The Court of Appeal found that, under the 1984 Act, the Defendant owed the Claimant a duty of care because the Council was clearly aware of the danger to swimmers and despite their efforts to prevent swimming in the lake several members of the public continued to do so. Consequently the Court considered it reasonable to expect the Defendant to take further measures to protect against the risk.

The Court of Appeal considered that whilst the Judge at first instance had found the risk was obvious and the measures taken by the Council sufficient, the history, both of the danger of swimming and of the numbers exposed to it, had driven the Council to the conclusion that the existing measures were not working and further works were required to dissuade possible swimmers. On this basis they felt there to be enough evidence to show that the duty was not discharged. Judgement was given for the Claimant.

The House of Lords

On appeal the House of Lords reversed the finding of the Court of Appeal. Whilst finding there to be no risk that could give rise to a duty under the 1984 Act, the Lords considered the matter on the assumption that there was such a duty and thereby took the opportunity to reaffirm the law in this area.

In particular, with regard to the Defendant's duty to provide protection from the risks of swimming, it was noted that the Judge at first instance had relied upon consistent authority to find that there was no duty to warn because the danger and risk of injury form diving into the lake where it was shallow was obvious. Therefore, it was common sense that any additional warnings would have done no more than told the Claimant what he already knew.

Further, the House of Lords did not consider that it was sufficient to proceed as the Court of Appeal had in finding that as long as a risk was foreseeable it needed to be prevented, it found that any duty to warn against, and discourage people from taking a risk that could result in a serious injury, had to be balanced as against the social value of the amenity that gave rise to the risk, and the cost of preventative measures. In this instance, the majority of visitors to the park would enjoy the use of the beach and lake in such a way that there was no risk. The fact that people did not take any notice of the warnings not to swim did not create a duty to take other steps to protect them from a danger that was obvious. In short, just because the Council had taken the decision to put further protective measures in place, did not mean that they were under a legal duty to do so.

Lord Hoffman was particularly keen to stress that it would be extremely rare for an occupier of land to be under a duty to prevent people form taking risks that were inherent in the activities that they freely chose to undertake. He emphasised that the duty to protect against obvious risks (or self inflicted harm) only existed in cases in which there was no genuine or informed choice, such as in the case of employees, or those with some lack of capacity such as children who would not recognise the danger.

Discussion

The Court of Appeal's judgement sat uneasily with other decisions of the Court of Appeal in this area of the law. The House of Lords decision has reaffirmed the position, namely that when an adult of full capacity voluntarily undertakes an activity that carries an obvious risk and/or is obviously dangerous, then that risk cannot be taken to be a risk within the scope of the Occupiers Liability Act of 1984 because the risk is not attributable to the "state of the premises", but rather the free will of that individual in using the premises in such a way that they know to be dangerous. The position had the case been heard under the 1957 Act is the same and cases in the future are likely to focus upon whether a given danger was hidden or obvious and the capacity of the claimant to appreciate the danger.

By Howard Watson

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

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