Tomlinson (FC) (Original Respondent and Cross-appellant) v. Congleton Borough Council and others (Original Appellants and Cross-respondents)

An occupier is not ordinarily required to protect a competent adult from an obvious risk inherent in an activity which the adult freely chooses to undertake. Foreseeability of serious injury does not alone establish a duty.

Under the Occupiers' Liability Act 1984, the danger must arise from the state of the premises or something done or omitted there. A risk created solely by the claimant's chosen activity falls outside that scope. Reasonableness also requires a balance between the likelihood and gravity of injury, the social value of the activity and the cost of precautions. The law does not generally require socially valuable amenities to be restricted to prevent informed risk-taking.

An 18-year-old entered the lake at a public country park, where swimming was prohibited by signs and oral warnings. He plunged forward from shallow water, struck the smooth sandy bottom and sustained tetraplegia. The lake contained no concealed obstruction and was no more dangerous than ordinary open water.

Jack J dismissed his occupiers' liability claim. The Court of Appeal, by a majority, held the councils liable but reduced damages by two-thirds for contributory negligence: [2002] EWCA Civ 309. The councils appealed, and the claimant cross-appealed against the apportionment.

The central issues were whether the injury arose from a danger attributable to the premises, whether the claimant was a visitor or trespasser, and whether either the Occupiers' Liability Act 1957 or the Occupiers' Liability Act 1984 required further measures to prevent entry into the water.

1. Disposition. The House unanimously allowed the councils' appeal, restored the decision of Jack J dismissing the claim, and dismissed the claimant's cross-appeal concerning contributory negligence.
2. Statutory scope. Lord Hoffmann delivered the leading speech, with which Lord Nicholls expressly agreed. Lord Hutton and Lord Hobhouse also treated the claimant as a trespasser when he knowingly used the lake for a prohibited purpose. The majority therefore applied the Occupiers' Liability Act 1984. Per Lord Hoffmann, supported on this point by Lord Nicholls and Lord Hobhouse, the statutory danger had to arise from the state of the premises or something done or omitted there. The lake contained no hidden hazard. The material risk arose from the claimant's voluntary attempt to dive in shallow water, not from the premises. That conclusion was independently fatal to the claim.
3. Reasonable protection. Per Lord Hoffmann, even assuming a qualifying danger, section 1(3)(c) of the Occupiers' Liability Act 1984 did not require the councils to offer further protection. Foreseeability and the possible gravity of injury were not sufficient. Reasonableness required the likelihood and seriousness of injury to be balanced against the social value of the activity and the financial and social cost of precautions. Destroying the beaches would have deprived responsible visitors of harmless recreation. The modest likelihood of the relevant accident did not justify that response.
4. Obvious and voluntarily accepted risks. Per Lord Hoffmann, it will be extremely rare for an occupier to owe a duty to prevent a competent adult from taking risks inherent in an activity freely chosen on the land. An ignored warning does not itself create a duty to impose stronger preventative measures. A different conclusion may arise where there is no genuine and informed choice, an employment relationship, or incapacity such as a child's inability to recognise danger. The councils would therefore have committed no breach even if the claimant had remained a lawful visitor under section 2(2) of the Occupiers' Liability Act 1957.
5. Separate reasoning. Lord Hutton considered that murky water could constitute the state of the premises, but concluded that an occupier was not reasonably expected to protect an adult from this obvious natural danger. Lord Scott considered that the claimant remained a visitor because he had not begun swimming, so that the 1957 Act applied. He nevertheless agreed that the Act did not require the councils to prevent ordinary recreational use of the shallows. Lord Hobhouse held both that there was no qualifying danger and that the law required no disproportionate response to the claimant's obvious, self-created risk.

1. House of Lords: The councils' appeal was allowed unanimously. The decision of Jack J dismissing the claim was restored, and the claimant's cross-appeal was dismissed: [2003] UKHL 47.
2. Court of Appeal: By a majority, Ward LJ and Sedley LJ held the councils liable; Longmore LJ dissented. Damages were reduced by two-thirds for contributory negligence: [2002] EWCA Civ 309.
3. High Court: Jack J dismissed the claim. He found that the lake presented no unusual or hidden danger and that the obvious risk did not require additional protective measures.