Tomlinson v Congleton Borough Council and another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HENRY,Lord Justice Ward,Lord Justice Sedley,Lord Justice Longmore |
| Judgment Date | 14 March 2002 |
| Neutral Citation | [2001] EWCA Civ 911,[2002] EWCA Civ 309 |
| Docket Number | Case No: PTA/2001/0788/B3,Case No: B3/2001/0788 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 March 2002 |
[2001] EWCA Civ 911
Lord Justice Henry
Case No: PTA/2001/0788/B3
G H Martin Esq, QC (instructed by Messrs Paul Ross & Co for the Applicant)
I am persuaded by oral submissions from Mr Martin QC on renewal that permission to appeal should be granted on the unusual facts of this case.
His submissions are based on the history of the development of the gravel pit as a country park, the almost immediate establishment (1983) of "… acceptable and unacceptable water activities …", the latter being swimming (which by 1988 on hot days was attracting overwhelming numbers). The defendants recognised the danger of people being injured or drowning, and recognised some years before the accident that deterrence to swimming was their's and the public's best protection. A programme of deterrence by making the existing beaches unattractive to swimmers (by covering with soil and/or planting reeds) was devised, but no room was found in their budget for the works prior to the accident. At the time of the accident, the work had started.
On those facts the appellant relies on section 1(3) of the Occupier's Liability Act, 1984 in that he was owed a duty of care because the defendant occupiers:
a) were aware of the dangers to swimmers;
b) knew that substantial numbers of swimmers used the mere or were in close proximity to it; and
c) the risk was one against which they might reasonably be expected to offer some protection, as they themselves recognised, and by the time of the accident had commenced to put in place.
Mr Martin also relies on an unreported decision of this Court, to which the judge was not referred, dealing with the duty owed by occupiers to trespassers who they know are consciously imperilling themselves on their land: see Scott -v—Associated British Ports and British Railways Board (B3/1999/1194 and B3/1999/1195) —judgment given on 22nd November 2000 by a constitution presided over by Simon Brown LJ.
ORDER: Permission to appeal granted.
(Order does not form part of approved Judgment)
[2002] EWCA Civ 309
Lord Justice Ward
Lord Justice Sedley and
Lord Justice Longmore
Case No: B3/2001/0788
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH
DIVISION (Mr. Justice Jack)
Mr. W.T.S. Braithwaite QC and Mr. G. Martin QC (instructed by Paul Ross & Co.) for the Appellant
Mr. R. D. Machell, QC (instructed by James Chapman & Co.) for the Respondent
This appeal concerns an accident with very severe consequences which happened on 6 th May 1995 to the claimant, John Tomlinson. He was 18 years old at the time and he was one of many hundreds of people who regularly went to Brereton Heath Park near Congleton in Cheshire. The park was owned and occupied by the Borough Council (the first defendant) managed for them by the County Council (the second defendant). They have resolved their initial differences and now defend jointly as occupiers.
The centre piece of the park is a lake. It is not a natural mere but a disused quarry, about 40 foot deep at its deepest point towards which the shore shelves at varying degrees. It was an extremely popular venue where yachting, sub-aqua diving and other regulated activities were permitted, but swimming and diving were not. The prohibition was made clear by notices reading "DANGEROUS WATER: No SWIMMING", which had little or no effect. A succession of disclosed internal documents, to which I shall have to refer in detail later, shows the local authorities to have been fully alive to this and the need to do what they could about it. A scheme was in fact developed to plant the shores from which people swam with vegetation which would make them inaccessible, but by the date of the accident the budgetary bids for the relatively modest cost of doing this work had been repeatedly turned down. Since the accident, planting has been carried out and has proved effective.
6 May 1995 was the Saturday of a bank holiday weekend and a hot day. The claimant went there after work with some friends in the early afternoon. He went in and out of the water, like others, to cool off, diving or plunging within his depth. At one point of the afternoon Mr. Tomlinson dived from a standing position in water which came no higher than his mid-thigh. Somehow—it has never become clear how, but the judge saw no reason to attribute it to a submerged object—Mr. Tomlinson struck his head with sufficient force to drive his fifth cervical vertebra into the spinal canal. The injury paralysed him from the neck down, and in the time since he has made only a limited recovery of the use of his hands and arms.
His case against the local authorities is that as occupiers it was their breach of their duty of care towards him which was the cause of his accident. Their case is that the risk of danger was, as he knew, an obvious one and he willingly accepted it.
Jack J., who tried the issue of liability in Manchester on 21 March 2001, set out the history in careful detail. At the end of it he said:
"I conclude this section by noting that there was nothing about the mere at Brereton Heath which made it any more dangerous than any other ordinary stretch of open water in England. Swimming and diving carry their own risks. So, if the mere at Brereton was to be described as a danger, it was only because it attracted swimming and diving, which activities carry a risk."
As to the occurrence of the accident, the judge found:
"Mr. Tomlinson waded into the water until it was a little above his knees, probably at or no deeper than mid-thigh level. He could not see the bottom. He then threw himself forward in a dive or plunge. He intended it to be a shallow dive. But it went wrong. He went deeper than he intended. His head struck the sandy bottom. … I am satisfied that he did not dive towards the shore, and I am satisfied that he did not jump into the air and then jack-knife to do a vertical dive … Mr. Tomlinson said that he was a strong swimmer. It appeared from his evidence that he did not have much experience of diving. Somehow on this occasion he just got it wrong, with tragic results. He might have been saved by his arms, had they been outstretched in from of him, but somehow he was not."
The judge's findings, which have not been challenged on this appeal, that the claimant had seen and ignored the signs meant that when he entered the water, he ceased to be at the park for the purposes for which he was invited and permitted by the defendants to be there. He accordingly ceased to be a visitor and became a trespasser. As such, he was owed not the common duty of care under the Occupiers' Liability Act 1957 but the duty contained in section 1 of the Occupiers' Liability Act 1984. That Act, replacing the accretion of common law rules, provides by section 1:
"1. Duty of occupier to persons other than his visitors
(1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine —
(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and
(b) if so, what that duty is.
(2) For the purposes of this section, the persons who are to be treated respectively as an occupier of any premises (which, for those purposes, include any fixed or movable structure) and as his visitors are —
(a) any person who owes in relation to the premises the duty referred to in section 2 of the Occupiers' Liability Act 1957 (the common duty of care), and
(b) those who are his visitors for the purposes of that duty.
(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) if —
(a) he is aware of the danger or has reasonable grounds to believe that it exists;
(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and
(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
(4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.
(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.
(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person...
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