Tomlinson v Congleton Borough Council & Anor

On renewal of an application for permission to appeal, permission may be granted where the factual circumstances are sufficiently unusual to warrant consideration by the Court of Appeal. The grant of permission does not determine the merits of the proposed appeal or the scope of any duty owed by occupiers under the Occupier's Liability Act 1984.

The applicant sought permission to appeal from a decision of Mr Justice Jack in the Queen’s Bench Division. The proposed appeal concerned injuries arising from swimming in a gravel pit forming part of a country park. The applicant relied on section 1(3) of the Occupier's Liability Act 1984, contending that the occupiers knew of the danger, knew that substantial numbers of swimmers used or approached the water, and recognised that protective measures were reasonably required.

On renewal, the central issue was whether the unusual factual history justified granting permission to appeal.

Lord Justice Henry granted permission to appeal on renewal. The order concerned permission only and did not determine the substantive appeal.

1. The factual history was unusual. The gravel pit had been developed as a country park, and acceptable and unacceptable water activities had been identified soon afterwards.
2. Swimming had attracted overwhelming numbers on hot days. The defendants recognised the risk of injury or drowning and considered deterrence to be the best protection for both the public and themselves.
3. A programme had been devised to make the existing beaches unattractive to swimmers by covering them with soil or planting reeds. Although budgetary constraints had delayed completion, the works had begun by the time of the accident.
4. Those circumstances were sufficient to justify appellate consideration of the applicant’s reliance on section 1(3) of the Occupier's Liability Act 1984.
5. The applicant also relied on Scott v Associated British Ports and British Railways Board, an unreported decision of the Court of Appeal. The court did not determine its application at this stage.

Permission to appeal was granted.

1. Court of Appeal (Civil Division): On renewal, permission to appeal was granted: [2001] EWCA Civ 911.
2. Queen’s Bench Division: The proposed appeal arose from a decision of Mr Justice Jack. The citation of that decision was not stated in the judgment.