UK: The House of Lords Restrict Occupiers Liability for Accidents: Tomlinson v. Congleton Borough Council and Others (2004)

Last Updated: 3 December 2004
Article by Ben Challis, Barrister-at-law

In one of the most important decisions in the area of occupiers liability in the last decade the House of Lords, the United Kingdom’s supreme tribunal, has made a landmark decision limiting the liability of occupiers: The case arose out of a tragic accident at Brereton Heath Country Park, between Holmes Chapel and Congleton. The Park covers about 80 acres and has been owned by Congleton Borough Council since 1980 when the council acquired the land surrounding what was then a derelict sand quarry and laid it out as a country park. The Park is managed by Cheshire County Council. On a very hot 6th May in 1995 18 year old John Tomlison and some friends went to the Park; to cool off Tomlinson dived into the lake and his head hit the bottom, breaking his fifth vertebrae and Mr Tomlinson is sadly now a tetraplegic. The majority of the Court of Appeal (Longmore LJ dissenting) had allowed an appeal from the decision of Mr Justice Jacks who initially turned down the claim and held that the defendants were liable for a claim in occupier’s liability. However the House of Lord robustly criticised the majority decision in Court of Appeal and all five Law Lords found that no liability was owed to the claimant, upholding the original judgement of Jacks J and supporting the position of Longmore LJ.

Lord Hoffman in the House of Lords remarked "in these proceedings [Tomlin] seeks financial compensation: for the loss of his earning capacity, for the expense of the care he will need, for the loss of the ability to lead an ordinary life. But the law does not provide such compensation simply on the basis that the injury was disproportionately severe in relation to one's own fault or even not one's own fault at all. Perhaps it should, but society might not be able to afford to compensate everyone on that principle, certainly at the level at which such compensation is now paid. The law provides compensation only when the injury was someone else's fault. In order to succeed in his claim, that is what Mr Tomlinson has to prove".

The claim was brought under the Occupiers Liability Act: The County Council, as manager of the Park (and a joint defendant), had for many years pursued a policy of prohibiting swimming or the use of inflatable dinghies or mattresses and there were prominent signs to this effect. Park Rangers would regularly ask people to disengage from swimming although were often ignored or insulted. Leaflets were handed out warning of the dangers of swimming and ropes and life-belts provided for emergencies. There were a number of near fatalities at the lake as the rules and warnings were ignored. The claimant accepted that he was a trespasser for the purposes of occupier’s liability so outside the provisions of the Occupiers Liability Act 1957 but brought a claim under the Act of 1984. Lord Hoffman remarked ""the duty under the 1984 Act was intended to be a lesser duty, as to both incidence and scope, than the duty to a lawful visitor under the 1957 Act. That was because Parliament recognised that it would often be unduly burdensome to require landowners to take steps to protect the safety of people who came upon their land without invitation or permission. They should not ordinarily be able to force duties upon unwilling hosts". Lord Hoffman went further and confirmed that Mr Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous state. Lord Hoffman then added that "Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity which had inherent risk. The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case can the risk be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity. In the present case, Mr Tomlinson knew the lake well and even if he had not, the judge's finding was that it contained no dangers which one would not have expected. So the only risk arose out of what he chose to do and not out of the state of the premises ….. It follows that in my opinion, there was no risk to Mr Tomlinson due to the state of the premises or anything done or omitted upon the premises. That means that there was no risk of a kind which gave rise to a duty under the 1957 or 1984 Acts.

Lord Hoffman went on to consider the position if there HAD been a duty. He considered that the Council would have (i) Knowledge or foresight of the danger [caused to swimmers] and (ii) would have had knowledge or foresight of the presence of visitors. The third part of the test is whether (iii) it was reasonable for the claimant to expect protection. Here the House of Lords held that what the court had to do was to look at the balance of risk, gravity of injury, cost and social value ……… it will 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. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may be think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so. ….. there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches 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.

Also allowing the appeal, Lord Hobhouse added the following comment "the fact that it is not, and should never 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 rightly entitled. Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coast line and other beauty spots to be lined with warning notices? Does the law require that attractive water side picnic spots be destroyed because of a few foolhardy individuals who choose to ignore warning notices and indulge in activities dangerous only to themselves? The answer to all these questions is, of course, no. But this is the road down which your Lordships, like other courts before, have been invited to travel …. In truth the arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen"

The full text can be found at: http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030731/tomlin-2.htm

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