Tomlinson v Congleton Borough Council & Ors

The House of Lords allowed the councils' appeal and restored the trial judge's decision that the occupiers were not liable for the claimant's diving injury. The court held that under the Occupiers' Liability Acts the relevant risk must be attributable to the "state of the premises" or to things done or omitted on them; an injury arising from an activity's inherent risk (here a badly executed dive) is not necessarily a danger due to the state of the premises. The 1984 Act requires that the occupier knew of the danger, knew that the class of persons would be in the vicinity, and that the risk was one against which the occupier might reasonably be expected to offer protection (section 1(3)). Where the danger is obvious and adults freely choose to run an obvious risk, the occupier will not ordinarily be required to take further protective measures; the court emphasised balancing likelihood and gravity of harm, cost and social utility, and individual freedom to accept risk.

The claimant, aged 18, dove into a shallow lake at Brereton Heath Country Park and sustained a catastrophic neck injury. He sued Congleton Borough Council and Cheshire County Council in occupiers' liability under the Occupiers' Liability Act 1957 and, by concession, under the Occupiers' Liability Act 1984 as a trespasser. The councils had a long-standing no swimming policy and had erected notices and taken some measures; internal reports show they considered further landscaping to deter swimmers but had not implemented it by the date of the accident.

The principal issues were (i) whether the injury was caused by a danger "due to the state of the premises or to things done or omitted to be done on them"; (ii) if the 1984 Act applied, whether the statutory conditions in section 1(3) (knowledge of danger, foreseeability of trespassers and whether protection may reasonably be expected) were satisfied; and (iii) whether, on a balancing of likelihood, severity, cost and social value, the occupiers were required to take further steps beyond warnings and patrols. The Court of Appeal had found liability, reducing damages for contributory negligence; the House of Lords allowed the councils' appeal.

The Lords reasoned that the primary risk arose from the voluntary activity of diving rather than from a latent danger in the premises; there was no hidden trap or unusual state of the mere. Even assuming arguendo that the statutory conditions were met, the risk was obvious and the likelihood of the particular severe outcome was low, so it was not reasonable to expect the occupiers to undertake the defensive measures proposed. The court further emphasised the need to balance prevention costs and social utility and to respect individuals' freedom to accept obvious risks. The appeal was therefore allowed and the cross-appeal on apportionment dismissed. The court noted the rarity of imposing duties to prevent adults from taking obvious risks and warned against measures that would unduly restrict public amenities.

Appeal allowed. The House of Lords held that the claimant's injury arose from risks inherent in his chosen activity and not from a danger due to the state of the premises or things done or omitted on them; even if the 1984 Act conditions were arguable, the risk was obvious and the occupiers were not reasonably expected to take the further protective measures sought. The decision of the trial judge (Jack J) was restored and the cross-appeal on apportionment of damages was dismissed.

Appeal to the Court of Appeal ([2002] EWCA Civ 309) allowed; appeal to the House of Lords ([2003] UKHL 47) allowed, restoring the trial judge's decision (Jack J) which had rejected the claimant's claim.