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    Tomlinson V Congleton Borough Council and Another

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    Kristina Tapsell
    The court considered whether a local council was liable for injuries suffered by a man who dove into a shallow lake in one of the council's parks. By a majority, the court found that the council was not liable. It held that the risk of injury from diving into shallow water was so obvious that the council did not owe the man a duty to protect him from that risk. It also held that the man voluntarily accepted the obvious risk when he chose to dive, so the council had discharged any duty it owed. One dissenting judge argued that the man was a visitor to the park, not a trespasser, so the council did owe him a duty of care as the occupier of the premises.

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    Tomlinson V Congleton Borough Council and Another

    Uploaded by

    Kristina Tapsell
    55 views3 pages
    The court considered whether a local council was liable for injuries suffered by a man who dove into a shallow lake in one of the council's parks. By a majority, the court found that the council was not liable. It held that the risk of injury from diving into shallow water was so obvious that the council did not owe the man a duty to protect him from that risk. It also held that the man voluntarily accepted the obvious risk when he chose to dive, so the council had discharged any duty it owed. One dissenting judge argued that the man was a visitor to the park, not a trespasser, so the council did owe him a duty of care as the occupier of the premises.

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    TOMLINSON V CONGLETON BOROUGH COUNCIL AND ANOTHER

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    The court considered whether a local council was liable for injuries suffered by a man who dove into a shallow lake in one of the council's parks. By a majority, the court found that the council was not liable. It held that the risk of injury from diving into shallow water was so obvious that the council did not owe the man a duty to protect him from that risk. It also held that the man voluntarily accepted the obvious risk when he chose to dive, so the council had discharged any duty it owed. One dissenting judge argued that the man was a visitor to the park, not a trespasser, so the council did owe him a duty of care as the occupier of the premises.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    55 views3 pages

    Tomlinson V Congleton Borough Council and Another

    Uploaded by

    Kristina Tapsell
    The court considered whether a local council was liable for injuries suffered by a man who dove into a shallow lake in one of the council's parks. By a majority, the court found that the council was not liable. It held that the risk of injury from diving into shallow water was so obvious that the council did not owe the man a duty to protect him from that risk. It also held that the man voluntarily accepted the obvious risk when he chose to dive, so the council had discharged any duty it owed. One dissenting judge argued that the man was a visitor to the park, not a trespasser, so the council did owe him a duty of care as the occupier of the premises.

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    CASEBRIEF

    C A S E N A M E: TOMLINSON V CONGLETON BOROUGH COUNCIL AND ANOTHER

    C I T A T I O N: [2003] UKHL 47, [2004] 1 AC 46

    S U B J E C T: LAW OF TORT

    T O P I C: OCCUPIERS’ LIABILITY – TRESPASSER

    ISSUE PROCEDURALHISTORY
    (1) Whether the judge had erred in law in (a) his First Instance Jack J sitting in Manchester District
    finding that the risk referred to in s.1(3)(c) Registry – P had seen and ignored the signs which
    OLA 1984 was not one which, in all the meant that when he entered the water, he ceased to be
    circumstances of the case, D might at the park for the purposes for which he was invited
    reasonably be expected to offer some and permitted by the Ds to be there. He ceased to be a
    protection. visitor and became a trespasser which meant he was
    (2) Whether the judge had erred in law in (b) his not owed a common duty of care under the Occupiers’
    further alternative finding that, if the risk was Liability Act 1957 but under s.1 of the Occupiers’
    one where the Ds could reasonably be Liability Act 1984. Found against the P – (1) P took a risk
    expected to offer some protection, the duty (2) danger and risk of injury from diving in the late
    they owed to P had been discharged by the where it was shallow were obvious. (3) if Ds were in
    provision of warning notices. breach, then contributory negligence would be applied.
    (3) Whether the judge had erred in law in (c) his
    further finding that P had willingly accepted Court of Appeal – by a majority allowed the appeal.
    the risk within the meaning of s.1(6) of the Since the introduction of the Occupiers’ Liability Act
    1984 Act 1984, the courts should not strain to imply a license.
    (4) Whether the judge had erred in law in (d) his Court of Appeal had held that the council were liable
    further finding that, if D’s were liable to P for but reduced the damages by 2/3 under the Law Reform
    breach of their duty owed under s.1(3) of the (Contributory Negligence) Act 1945.
    Act, P was 2/3 contributorily negligent

    FACTS RULEOFLAW
    Accident with severe consequences on May 6, 1995. There is no duty to protect against obvious risks under
    John, Plaintiff, was one of hundred that regularly either the Occupiers’ Liability Act 1957 or Occupiers’
    went to Breton Heath Park which was owed and Liability Act 1984.
    occupied by borough council (D1), managed by the
    county council (D2). A balance should be struck between the magnitude and
    gravity of risk with the social and financial cost of
    Lake (about 40ft deep at its deepest point) Yachting, preventative measures when assessing whether
    sub-aqua diving and other regulated activities were reasonable care was taken under both Acts.
    permitted, but swimming and diving were not – this
    was made clear by notices reading “DANGEROUS
    WATER: NO SWIMMING”, which had little or no
    effect.

    Hot afternoon. Mr Tomlinson dived from a standing


    position in water which came no higher than his
    mid-thigh. Mr Tomlinson stuck his head with
    sufficient force to drive is fifth cervical vertebra into
    the spinal canal. Injury paralysed him from the neck
    down and he has made a limited recovery of the use
    of his hands and arms.

    JUDGEMENT COURTREASONING
    Allowed D’s appeal, that any risk of P suffering injury Ward LJ Majority
    had arisen not from any danger due to the state of The risk of danger was so obvious that it could be said
    D’s premises or to things done or omitted to be that no risk arose from the state of the premises under
    done on them within s.1(1)(a) of 1984 Act but from s1(3) Occupiers Liability Act 1984. Instead, the risk
    P’s own misjudgement in attempting to dive in too arose from the claimant’s own actions who voluntarily
    shallow water; that that had not been a risk giving engaged in this risk. The respondent was a man of full
    rise to any duty on the defendants; and that, in any capacity who voluntarily engaged in an activity which
    event, it had not been a risk in respect of which the had an inherent risk in it. There was nothing inherent
    defendants might reasonably have been expected to about the state of the premises which rendered them
    afford the plaintiff some protection under section any more dangerous than could be expected, and no
    1(1)(c) (paras 1, 26-29, 34, 50, 53, 65, 70, 74, 82-83, question of the council being expected to take any
    84) further steps to ensure that trespassers did not use the
    lake.

    Dissent Lord Scott [86]-[89] – Plaintiff was not Lord Scott Dissent
    swimming and accordingly was not trespasser. Act which must be applied is the 1957 act not the 1984
    act.
    1957 act regulates the duty of care which an occupier of
    premises owes to visitors whereas the 1984 act applies
    to trespassers.
    Park was open to the public therefore he was a visitor
    and owed a duty of care under 1954 act.
    [88] “The notices prominently displayed at various
    places in the park forbade swimming in the lake. But
    entry into the water was not forbidden. Visitors to the
    park were entitled to paddle and splash in the shallows
    of the lake. Many did so, particularly children. They
    were entitled to run into the water and splash one
    another. They were entitled to lie in the shallows and
    *98 let the cool water lap over them. In doing these
    things they were visitors and were owed the 1957 Act
    duty of care. All they were forbidden to do was to swim.
    If they had started swimming, using the lake for a
    purpose which was forbidden, they would have lost
    their status as visitors and become trespassers. The
    1984 Act would then have applied.”
    [89] P did not suffer his tragic accident whilst swimming
    therefore this injury cannot be attributed in any way to
    the dangers of swimming.
    NOTES CASESREFERENCED

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