Tomlinson v Congleton BC [2003] UKHL 47

An 18‑year‑old dived into shallow water at a country park lake, broke his neck and sued the local authorities as occupiers. The House of Lords held they owed no duty to prevent him from taking an obvious risk, stressing personal responsibility and limiting occupiers’ liability for natural features.

Facts

Brereton Heath Country Park in Cheshire includes a 14‑acre lake formed from a flooded sand quarry. Congleton Borough Council owned the park and Cheshire County Council managed it. The Councils prohibited swimming, displaying notices stating “Dangerous Water. No Swimming” and using rangers and leaflets to warn visitors.

Despite this policy, on a hot day in May 1995, John Tomlinson, aged 18, visited the park with friends. After sitting in the sun, he ran into the lake from a sandy beach and, in water a little above his knees, threw himself forward in a dive. He struck his head on the sandy bottom, breaking his neck at the fifth vertebra and becoming tetraplegic.

There was no obstruction on the lake bed. The trial judge found that the mere was no more dangerous than any ordinary stretch of open water and that the danger arose from the activity of diving rather than from any hidden defect in the lake.

Before the accident, internal reports had recorded substantial public use of the beaches for paddling and play, repeated disregard of the no‑swimming policy, several near‑drownings and minor head injuries, and expert recommendations to reduce or eliminate the beaches by creating reed beds so as to discourage entry into the water. Funding of about £5,000 for such works was eventually approved in 1995, but the works had not been carried out before Mr Tomlinson’s accident.

Issues

The central issues were:

• whether, at the time of the accident, Mr Tomlinson was to be treated as a visitor under the Occupiers’ Liability Act 1957 or as a trespasser under the Occupiers’ Liability Act 1984;
• whether there was a “danger due to the state of the premises or to things done or omitted to be done on them” within the meaning of the 1984 Act;
• whether, under section 1(3)(c) of the 1984 Act (or, if applicable, section 2(2) of the 1957 Act), the risk of injury from diving was one against which the Councils might reasonably be expected to offer Mr Tomlinson some protection;
• if a duty existed, whether the Councils were in breach by failing to implement more radical physical measures (such as destroying the beaches) to prevent swimming and diving; and
• whether the Court of Appeal was right to impose liability and to apportion contributory negligence.

Judgment

Status: visitor or trespasser

Mr Tomlinson originally pleaded as a visitor under the 1957 Act. In light of the express prohibition on swimming, his advisers conceded that when he went into the water to swim he became a trespasser, so that only the 1984 Act applied. Lord Hoffmann accepted that concession, reasoning that where an entrant knowingly uses premises for a prohibited purpose, any duty arises, if at all, under the more limited 1984 regime rather than the 1957 regime.

Lord Scott reserved his position, considering that, on a proper analysis, Mr Tomlinson’s claim should be treated under the 1957 Act because he was injured while still a lawful visitor paddling or playing in the shallows, and any alleged duty to prevent him becoming a trespasser (by swimming) would necessarily be owed while he was a visitor.

Danger due to the state of the premises

Under the 1984 Act, the Court had to determine whether Mr Tomlinson’s injury was caused by a danger due to the state of the premises or to things done or omitted on them. The trial judge had held that the lake contained no hidden dangers and was no more dangerous than any other ordinary stretch of open water; the only risk arose from the inherent dangers of swimming and diving.

Lord Hoffmann approved this characterisation, emphasising that the risk arose from what Mr Tomlinson voluntarily chose to do, not from the physical condition of the lake. He observed that:

“It seems to me 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.”

He rejected the argument that the attraction of the lake and the failure to take further measures to prevent swimming constituted “things done or omitted to be done” giving rise to a relevant danger.

Lord Hobhouse likewise stressed that there was no relevant danger due to the state of the premises and that, absent such a danger, the statutory duties could not arise.

Lord Hutton, while recognising the force of the contrary argument, inclined to the view that dark and murky water that prevented a diver from seeing the bottom could be viewed as “the state of the premises”, but he ultimately agreed that the claim failed on the distinct requirement in section 1(3)(c).

Section 1(3) of the 1984 Act: reasonable expectation of protection

Assuming in Mr Tomlinson’s favour that there was a relevant danger and that the Councils were aware of it and knew swimmers might be in its vicinity, the key question was whether the risk was one against which, in all the circumstances, it was reasonable to expect the Councils to offer some protection.

The trial judge found that:

“the danger and risk of injury from diving in the lake where it was shallow were obvious.”

He held that there was no duty to warn of an obvious danger, that the existing prohibitory notices and warnings were adequate, and that the Councils were not legally obliged to undertake the “extreme measures” of destroying the beaches. He would have reached the same conclusion even if the 1957 Act had applied.

The majority of the Court of Appeal (Ward and Sedley LJJ) disagreed, reasoning that the gravity of the potential injury, the number of people swimming, the attractiveness of the beach, and the ineffectiveness of the prohibition required the Councils to take more drastic physical measures to deter or prevent entry into the water. They held the Councils liable but reduced damages for contributory negligence.

The House of Lords rejected this approach. Lord Hoffmann analysed the balancing exercise inherent in “such care as in all the circumstances of the case is reasonable”, drawing on general negligence principles and earlier authorities. He emphasised the need to weigh (i) the likelihood and seriousness of injury, (ii) the cost and practicality of preventive measures, and (iii) the social value of the activities that would be curtailed. He stressed the importance of allowing adults of full capacity to make their own choices about obvious risks:

“I think 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.”

He continued:

“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.”

Lord Hoffmann considered that the social value of allowing families to use the beaches for paddling and play, and the principle that adults should accept responsibility for obvious risks inherent in their chosen activities, outweighed the very small risk of a serious accident of the kind suffered by Mr Tomlinson. Consequently, even if he had been a visitor under the 1957 Act, no duty would have required the Councils to remove the beaches or otherwise prevent paddling or informal access to the lake.

Given that conclusion, it followed a fortiori that, as a trespasser under the 1984 Act, Mr Tomlinson was not owed a duty to be protected against such an obvious and inherent risk. Section 1(3)(c) was not satisfied: the risk was not one against which the Councils could reasonably be expected to offer him protection.

Lord Hutton’s and Lord Hobhouse’s concurring opinions

Lord Hutton accepted that there was evidence the Councils knew of dangers to swimmers or divers and that preventive works would not have been expensive. However, he considered it crucial that the risk arose from an obvious natural feature and applied the principle that occupiers are generally not required to guard against obvious dangers arising from natural features such as rivers, lakes or cliffs. He drew on earlier Scottish and English authorities to support the continued validity of that principle under modern occupiers’ liability law.

Lord Hobhouse underlined the absence of any relevant “danger due to the state of the premises” and criticised internal local authority documents that, in his view, confused the seriousness of potential outcomes with the actual degree of risk. He stressed that the law does not require disproportionate responses to very low risks and warned against a “culture of blame and compensation” leading to unnecessary restrictions on public amenities and personal freedoms.

Lord Scott’s analysis

Lord Scott agreed in substance that the claim must fail but considered that, properly analysed, the case fell under the 1957 Act because Mr Tomlinson was injured while still a visitor in the shallows. He found it “unreal” to regard the injury as having been caused while Mr Tomlinson was a trespasser and gave analogies (such as tree‑climbing in defiance of notices) to illustrate that any alleged duty to prevent a visitor turning himself into a trespasser must be a duty owed while he remains a visitor.

He also questioned the characterisation of Mr Tomlinson’s movement as a “dive”, pointing out that he did not dive from height into unknown depth but rather plunged forward in shallow water where he knew the depth. The accident resulted from the angle of his forward plunge, not from any hidden danger.

Implications

The decision significantly clarifies and restricts occupiers’ liability in respect of natural or ordinary features of land, particularly water. It confirms that:

• both the 1957 and 1984 Acts are concerned with dangers due to the state of the premises or to activities on them, not with risks inherent in what individuals voluntarily choose to do;
• occupiers are generally under no duty to warn of, or protect against, obvious risks arising from natural features, especially where adults of full capacity freely choose to expose themselves to those risks;
• under the 1984 Act, a duty to trespassers arises only where it is reasonable to expect the occupier to offer some protection; obvious, inherent risks willingly accepted by adults will rarely meet that threshold; and
• local authorities are not legally obliged to destroy or materially downgrade public amenities (such as beaches or lakeside picnic areas) merely to protect against obvious risks taken by a minority, and internal risk‑management documents cannot themselves create legal duties.

Tomlinson v Congleton BC is now a leading authority on the limits of occupiers’ liability, the treatment of obvious risks, and the balance between risk management and personal responsibility in the law of tort.

Verdict: The House of Lords allowed the Councils’ appeal, restored the trial judge’s decision dismissing Mr Tomlinson’s claim, and dismissed his cross‑appeal on apportionment. No duty was owed to protect him against the obvious risk he voluntarily incurred, so no damages were recoverable.

Source: Tomlinson v Congleton BC [2003] UKHL 47