Tomlinson v Congleton Borough Council and another
| Jurisdiction | UK Non-devolved |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD HOFFMANN |
| Judgment Date | 31 July 2003 |
| Neutral Citation | [2003] UKHL 47 |
| Date | 31 July 2003 |
| Court | House of Lords |
and others
[2003] UKHL 47
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hutton
Lord Hobhouse of Woodborough
Lord Scott of Foscote
HOUSE OF LORDS
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, with which I agree, I would allow this appeal.
The accident
My Lords,
In rural south-east Cheshire the early May Bank Holiday week-end in 1995 was unseasonably hot. John Tomlinson, aged 18, had to work until midday on Saturday 6 May but then met some of his friends and drove them to Brereton Heath Country Park, between Holmes Chapel and Congleton. The Park covers about 80 acres. In about 1980 Congleton Borough Council acquired the land, surrounding what was then a derelict sand quarry, and laid it out as a country park. Paths now run through woods of silver birch and in summer bright yellow brimstone butterflies flutter in grassy meadows. But the attraction of the Park for John Tomlinson and his young friends was a 14 acre lake which had been created by flooding the old sand quarry. The sandy banks provided some attractive beaches and in hot weather many people, including families with children, went there to play in the sand, sunbathe and paddle in the water. A beach at the far end of the lake from the car park was where in fine weather groups of teenagers like John Tomlinson would regularly hang out. He had been going there since he was a child.
After sitting in the hot sun for a couple of hours, John Tomlinson decided that he wanted to cool off. So he ran out into the water and dived. He had done the same thing many times before. But this time the dive was badly executed because he struck his head hard on the sandy bottom. So hard that he broke his neck at the fifth vertebra. He is now a tetraplegic and unable to walk.
It is a terrible tragedy to suffer such dreadful injury in consequence of a relatively minor act of carelessness. It came nowhere near the stupidity of Luke Ratcliff, a student who climbed a fence at 2.30 am on a December morning to take a running dive into the shallow end of a swimming pool (see Ratcliff v McConnell [1999] 1 WLR 670) or John Donoghue, who dived into Folkestone Harbour from a slipway at midnight on 27 December after an evening in the pub ( Donoghue v Folkestone Properties Ltd [2003] 2 WLR 1138). John Tomlinson's mind must often recur to that hot day which irretrievably changed his life. He may feel, not unreasonably, that fate has dealt with him unfairly. And so in these proceedings he seeks financial compensation: for the loss of his earning capacity, for the expense of the care he will need, for the loss of the ability to lead an ordinary life. But the law does not provide such compensation simply on the basis that the injury was disproportionately severe in relation to one's own fault or even not one's own fault at all. Perhaps it should, but society might not be able to afford to compensate everyone on that principle, certainly at the level at which such compensation is now paid. The law provides compensation only when the injury was someone else's fault. In order to succeed in his claim, that is what Mr Tomlinson has to prove.
Occupiers' liability
In these proceedings Mr Tomlinson sues the Congleton Borough Council and the Cheshire County Council, claiming that as occupiers of the Park they were in breach of their duties under the Occupiers' Liability Acts 1957 and 1984. If one had to decide which of the two councils was the occupier, it might not be easy. Although the Park belongs to the Borough Council, it is managed on their behalf by the Countryside Management Service of the County Council. The Borough Council provides the funds to enable the Countryside Management Service to maintain the Park. It is the County which employs the Rangers who look after it. But the two Councils very sensibly agreed that one or other or both was the occupier. Unless it is necessary to distinguish between the County Council and the Borough Council for the purpose of telling the story, I shall call them both the Council.
Visitor or trespasser?
The 1957 Act was passed to amend and codify the common law duties of occupiers to certain persons who came upon their land. The common law had distinguished between invitees, in whose visit the occupier had some material interest, and licensees, who came simply by express or implied permission. Different duties were owed to each class. The Act, on the recommendation of the Law Reform Committee (Third Report: Occupiers' Liability to Invitees, Licensees and Trespassers, Cmd. 9305 (1954)), amalgamated (without redefining) the two common law categories, designated the combined class "visitors" (section 1(2)) and provided that (subject to contrary agreement) all visitors should be owed a "common duty of care". That duty is set out in section 2(2), as refined by subsections 2(3) to (5):
"2 (2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—
(a) an occupier must be prepared for children to be less careful than adults; and
(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.
(4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)—
(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and
(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.
(5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)."
At first Mr Tomlinson claimed that the Council was in breach of its common duty of care under section 2(2). His complaint was that the premises were not reasonably safe because diving into the water was dangerous and the Council had not given adequate warning of this fact or taken sufficient steps to prevent or discourage him from doing it. But then a difficulty emerged. The County Council, as manager of the Park, had for many years pursued a policy of prohibiting swimming or the use of inflatable dinghies or mattresses. Canoeing and windsurfing were allowed in one area of the lake and angling in another. But not swimming; except, I suppose, by capsized canoeists or windsurfers. Notices had been erected at the entrance and elsewhere saying "Dangerous Water. No Swimming". The policy had not been altogether effective because many people, particularly rowdy teenagers, ignored the notices. They were sometimes rude to the Rangers who tried to get them out of the water. Nevertheless, it was hard to say that swimming or diving was, in the language of section 2(2), one of the purposes "for which [Mr Tomlinson was] invited or permitted by the occupier to be there". The Council went further and said that once he entered the lake to swim, he was no longer a "visitor" at all. He became a trespasser, to whom no duty under the 1957 Act is owed. The Council cited a famous bon mot of Scrutton LJ in The Calgarth [1927] P. 93, 110: "When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters". This quip was used by Lord Atkin in Hillen v ICI (Alkali) Ltd [1936] AC 65, 69 to explain why stevedores who were lawfully on a barge for the purpose of discharging it nevertheless became trespassers when they went onto an inadequately supported hatch cover in order to unload some of the cargo. They knew, said Lord Atkin (at pp. 69-70) that they ought not to use the covered hatch for this purpose; "for them for such a purpose it was out of bounds; they were trespassers". So the stevedores could not complain that the barge owners should have warned them that the hatch cover was not adequately supported. Similarly, says the Council, Mr Tomlinson became a trespasser and took himself outside the 1957 Act when he entered the water to swim.
Mr Tomlinson's advisers, having reflected on the matter, decided to concede that he was indeed a trespasser when he went into the water. Although that took him outside the 1957 Act, it did not necessarily mean that the Council owed him no duty. At common law the only duty to trespassers was not to cause them deliberate or reckless injury, but...
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