Tomlinson v Congleton Borough Council

Under the Occupiers' Liability Act 1984, an obvious risk does not by itself determine whether an occupier owes a duty to a trespasser. The court must identify the danger and risk, consider the occupier’s knowledge of both, and ask whether some protection might reasonably be expected in all the circumstances. That threshold duty is distinct from the standard of reasonable care. A warning may discharge the duty, but only where appropriate; ineffective warnings may require practical measures. Voluntary acceptance requires full knowledge of the nature and extent of the risk. Serious known risks at a public attraction, coupled with modest effective precautions, may establish breach despite substantial contributory negligence.

John Tomlinson was seriously injured diving into shallow water at Brereton Heath Park, owned by Congleton Borough Council and managed jointly with Cheshire County Council. The trial judge held that, having ignored the no-swimming signs, he was a trespasser under the Occupiers' Liability Act 1984. The danger was obvious, the warnings were sufficient, and the claimant had willingly accepted the risk. The appeal concerned whether a duty was owed, whether warnings discharged it, whether the risk was willingly accepted, and whether practical measures to deter swimming were required.

1. Majority outcome. Ward LJ, with Sedley LJ agreeing, allowed the appeal. The matter was remitted for assessment of damages, reduced by two-thirds for contributory negligence. Longmore LJ dissented and would have dismissed the appeal.
2. The Occupiers' Liability Act 1984 must be used as the template for the analysis. The inquiry is staged. First, the court identifies the danger and risk under section 1(1). Secondly, section 1(3) asks whether the occupier knew or had reasonable grounds to believe that the danger existed, knew or had reasonable grounds to believe that the claimant was or might be in its vicinity, and might reasonably be expected to offer some protection against the risk.
3. The expression “some protection” in section 1(3)(c) concerns whether a duty arises. It is distinct from the section 1(4) standard of reasonable care. The obviousness of a risk is a conclusion from the facts, not a substitute for applying the statutory test. Under section 1(4), relevant considerations include the claimant’s age and character, the nature and purpose of the entry, the inadequacy of existing precautions, the practicality of further steps, and their cost compared with the gravity of the risk.
4. Section 1(5) recognises that a warning may discharge the duty in an appropriate case, but it does not do so inevitably. Here the authorities knew that swimming was widespread, that accidents had occurred, and that the signs were ineffective. Ranger patrols and leaflets constituted some protection, but reasonable care required the recommended landscaping and planting of the beach areas. The work was practical, relatively inexpensive, and effective in deterring swimming.
5. Section 1(6) did not defeat the claim. Willing acceptance required full knowledge of the nature and extent of the risk and an implied agreement to incur it. The claimant mistakenly believed that his dive was safe. Sedley LJ additionally held that, once primary liability was established, the obviousness of the danger was relevant to contributory negligence, and that the precise accident need not have been foreseeable if it was not in an entirely different league: [1963] AC 837 and [1962] 2 QB 405.
6. Longmore LJ considered that ordinary open-water dangers were obvious and imposed no duty absent a concealed or particular hazard. That dissenting approach did not command the majority. The defendants were ordered to pay the costs here and below, subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division): The appeal was allowed. The case was remitted to the High Court for assessment of damages, reduced by two-thirds for contributory negligence. The defendants were ordered to pay the costs here and below.
• Queen’s Bench Division, Mr Justice Jack: Liability was rejected. The claimant was treated as a trespasser under the Occupiers' Liability Act 1984; the risk was held obvious, the warnings sufficient, and the risk alternatively willingly accepted.