House of Lords - Tomlinson (FC) (Original Respondent and Cross-appellant) v. Congleton Borough Council and others (Original Appellants and Cross-respondents)

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Session 2002 - 03
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Judgments - Tomlinson (FC) (Original Respondent and Cross-appellant) v. Congleton Borough Council and others (Original Appellants and Cross-respondents)

HOUSE OF LORDS

SESSION 2002-03
[2003] UKHL 47
on appeal from: [2002] EWCA Civ 309

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Tomlinson (FC) (Original Respondent and Cross-appellant) v. Congleton Borough Council and others (Original Appellants and Cross-respondents)

ON

THURSDAY 31 JULY 2003

The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hutton

Lord Hobhouse of Woodborough

Lord Scott of Foscote

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Tomlinson (FC) (Original Respondent and Cross-appellant) v. Congleton Borough Council and others (Original Appellants and Cross-respondents)

[2003] UKHL 47
LORD NICHOLLS OF BIRKENHEAD My Lords,
    1. 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.

LORD HOFFMANN

My Lords,
The accident

    2. 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.

    3. 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.

    4. 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

    5. 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?

    6. 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)."

    7. 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.

    8. 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 after an inconclusive attempt by the House of Lords to modify this rule in British Railways Board v Herrington [1972] AC 877, the Law Commission recommended the creation of a statutory duty to trespassers: see its Report on Liability for Damage or Injury to Trespassers and Related Questions of Occupiers' Liability (1976) Cmnd. 6428. The recommendation was given effect by the Occupiers' Liability Act 1984. Section 1(1) describes the purpose of the Act:

"1. (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."

    9. The circumstances in which a duty may arise are then defined in sub-section (3) and the content of the duty is described in subsections (4) to (6):

"(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) above 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 he 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 (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)."

    10. Mr Tomlinson says that the conditions set out in sub-section (3) were satisfied. The Council was therefore under a duty under subsection (4) to take reasonable care to see that he did not suffer injury by reason of the danger from diving. Subsection (5) shows that although in appropriate circumstances it may be sufficient to warn or discourage, the notices in the present case had been patently ineffectual and therefore it was necessary to take more drastic measures to prevent people like himself from going into the water. Such measures, as I shall later recount in detail, had already been considered by the Council.

    11. The case has therefore proceeded upon a concession that the relevant duty, if any, is that to a trespasser under section 1(4) of the 1984 Act and not to a lawful visitor under section 2(2) of the 1957 Act. On one analysis, this is a rather odd hypothesis. Mr Tomlinson's complaint is that he should have been prevented or discouraged from going into the water, that is to say, from turning himself into a trespasser. Logically, it can be said, that duty must have been owed to him (if at all) while he was still a lawful visitor. Once he had become a trespasser, it could not have meaningful effect. In the Court of Appeal, Longmore LJ was puzzled by this paradox:

"At what point does he become a trespasser? When he starts to paddle, intending thereafter to swim? There was no evidence that Mr Tomlinson in fact swam at all. He dived from a position in which swimming was difficult, if not impossible. I would be troubled if the respondents' duty of care differed depending on the precise moment when a swim could be said to have begun."

    12. In the later case of Donoghue v Folkestone Properties Ltd [2003] 2 WLR 1138, 1150 Lord Phillips of Worth Matravers MR said that he shared these reservations about the concession:

"What was at issue in the case was whether the Council should have taken steps which would have prevented Mr Tomlinson from entering the lake, that is, whether a duty of care was owed to him before he did the unauthorised act."

    13. As a matter of logic, I see the force of these observations. But I have nevertheless come to the conclusion that the concession was rightly made. The duty under the 1984 Act was intended to be a lesser duty, as to both incidence and scope, than the duty to a lawful visitor under the 1957 Act. That was because Parliament recognised that it would often be unduly burdensome to require landowners to take steps to protect the safety of people who came upon their land without invitation or permission. They should not ordinarily be able to force duties upon unwilling hosts. In the application of that principle, I can see no difference between a person who comes upon land without permission and one who, having come with permission, does something which he has not been given permission to do. In both cases, the entrant would be imposing upon the landowner a duty of care which he has not expressly or impliedly accepted. The 1984 Act provides that even in such cases a duty may exist, based simply upon occupation of land and knowledge or foresight that unauthorised persons may come upon the land or authorised persons may use it for unauthorised purposes. But that duty is rarer and different in quality from the duty which arises from express or implied invitation or permission to come upon the land and use it.

    14. In addition, I think that the concession is supported by the high authority of Lord Atkin in Hillen v ICI (Alkali) Ltd [1936] AC 65. There too, it could be said that the stevedores' complaint was that they should have been warned not to go upon the hatch cover and that logically this duty was owed to them, if at all, when they were lawfully on the barge.

    15. I would certainly agree with Longmore LJ that the incidence and content of the duty should not depend on the precise moment at which Mr Tomlinson crossed the line between the status of lawful visitor and that of trespasser. But there is no dispute that the act in respect of which Mr Tomlinson says that he was owed a duty, namely, diving into the water, was to his knowledge prohibited by the terms upon which he had been admitted to the Park. It is, I think, for this reason that the Council owed him no duty under the 1957 Act and that the incidence and content of any duty they may have owed was governed by the 1984 Act. But I shall later return to the question of whether it would have made any difference if swimming had not been prohibited and the 1957 Act had applied.

    16. It is therefore necessary to consider the conditions which section 1(3) of the 1984 Act requires to be satisfied in order that any duty under section 1(4) should exist. But before looking at the statutory requirements, I must say something more about the history of the lake, upon which Mr Braithwaite QC, who appeared for Mr Tomlinson, placed great reliance in support of his submission that the Council owed him a duty with which it failed to comply.
The history of the lake
    17. The working of the sand quarry ceased in about 1975 and for some years thereafter the land lay derelict. People went there for barbecues, camp fires, open air parties and swimming. The Borough Council bought the land in 1980 and most of the work of landscaping and planting was finished by 1983. The land was reclaimed for municipal recreation. But the traditions established in the previous anarchic state of nature were hard to eradicate. From the beginning, the County Council's Management Plan treated swimming as an "unacceptable water activity". The minutes of the County Council's Advisory Group of interested organisations (anglers, windsurfers and so forth) record that on 21 November 1983 the managers proposed to put up more signs to dissuade swimmers: "The risk of a fatality to swimmers was stressed and agreed by all". The windsurfers in particular were concerned about swimmers getting in their way; perhaps being injured by a fast-moving board. The chairman summed up by saying that although the lake with its sandy beaches was a great attraction to visitors, it was also a management problem because of misuse and dangerous activities on the water.

    18. In the following year, 1984, the management reported that larger notice boards had prevented the swimming problem from getting any worse: "Every reasonable precaution had now been taken, but it was recognised that some foolhardy persons would continue to put their lives at risk."

    19. The management report for 1988 stated that a major concern was?

"the unauthorised use of the lake and the increasing possibility of an accident; this is swimming and the use of rubber boats. Warnings are ignored by large numbers who see Brereton as easy, free access to open water. On busy days the overwhelming numbers make it impossible to control this use of the lake, and it is difficult to see how the situation can change unless the whole concept of managing the park and the lake is revised."

    20. In 1990 there was an inspection by Mr Victor Tyler-Jones, the County Council's Water Safety Officer. He reported that the swimming problem continued, due to the ease of access, the grassy lakeside picnic areas and the beaches and the long history of swimming in the lake. His recommendation was to reduce the beach areas by planting them with reeds. His guidelines for the entire county said that swimming in lakes, rivers and ponds should be discouraged:

"We do not recommend swimming as a suitable activity for any of our managed sites. Potential swimmers could be dissuaded by noticeboard reference to less pleasant features e.g. soft muddy bottom, danger of contracting Weil's Disease, presence of blue-green algae."

If this did not have the desired effect, ballast should be dumped on beaches and banks to make them muddy and unattractive and reeds and shrubs should be planted.

    21. The money to implement these recommendations had to be provided by the Borough Council, which was under some financial pressure. But impetus was provided in the summer of 1992 by a number of incidents. Over Whitsuntide there were three cases of "near drowning resulting in hospital visits". The only such incident of which more details are available concerned a man who "was swimming in lake, after drinking, and got into difficulty". He was rescued by a relative, resuscitated by an off-duty paramedic and taken to hospital. Two men cut their heads by hitting them on something when diving into the lake; there is no information about where they dived. Mr Kitching, the County Council's Countryside Manager, prepared a paper for the Borough Council at the end of the first week in June. He said that the Park had become very popular:

"The total number of visitors now exceeds 160,000 per annum...The lake acts as a magnet to the public and has become heavily used for swimming in spite of a no swimming policy due to safety considerations...Advice has been sought from the County Council's Water Safety Officer as to how the problem should be addressed and this has been carefully followed. Notices are posted warning of the dangers and leaflets are handed to visitors to emphasise the situation. Life belts and throwing lines are provided for use in emergencies.

In spite of these actions the public continue to ignore the advice and the requests of the rangers not to swim. The attitude is that they will do what they want to do and that rangers should not interfere with their enjoyment. There have been several occasions when small children have been out in the middle of the lake and their parents have been extremely rude to staff when approached about this.

As a result of the general flaunting of the policy there have been a number of near fatalities in the lake with three incidents requiring hospital treatment in the week around Whitsun. Whilst the rangers are doing all they can to protect the public it is likely to be only a matter of time before someone drowns."

    22. In July 1992 the Borough Council's Leisure Officer visited the Park and concluded that the notices and leaflets were not having the desired effect. On 23 July 1992 he proposed to other officers the preparation of a report to the Borough Council recommending the adoption of Mr Tyler-Jones's scheme for making the beaches less hospitable to visitors:

"I want the water's edge to be far less accessible, desirable and inviting than it currently is for children's beach/water's edge type of play activities. I personally find this course of action a regrettable one but I have to remind myself that Council policy was to establish a Country Park and not specifically to provide a swimming facility, no matter how popular this may have become in consequence. To provide a facility that is open to the public and which contains beach and water areas is, in my view, an open invitation and temptation to swim and engage in other water's edge activities despite the cautionary note that is struck by deterrent notices etc., and in that type of situation accidents become inevitable. We must therefore do everything that is reasonably possible to deter, discourage and prevent people from swimming or paddling in the lake or diving into the lake...Work should be prepared for the report with a view to implementation of a scheme at the earliest opportunity, bearing in mind that we shall require a supplementary estimate for the exercise."

    23. As a result of this proposal, the Borough Leisure Officer was asked to prepare a feasibility report with costings. £5,000 was provided in the draft estimates for the Borough's Amenities and Leisure Services Committee, but it was one of many items deleted at the Committee's meeting on 1 March 1993 to achieve a total saving of £200,000. In 1994, the officers tried again. It was listed as a "desirable" growth bid in the budget (below "essential" and "highly desirable"). But the bid failed. When it came to the 1995 budget round, the officers presented a strongly-worded proposal:

"Cheshire Countryside Management Service has now taken all reasonable steps with regard to providing information and attempting to educate the public about the dangers of bathing in the lake. This has had a limited effect on the numbers entering the water for short periods but there are still numbers of people, including young children, swimming, paddling and using inflatable rafts and dinghies whenever the weather is warm and sunny. We have on average three or four near drownings every year and it is only a matter of time before someone dies.

The recommendation from the National Safety Water Committee, endorsed by County Councils, is that something must now be done to reduce the 'beach areas' both in size and attractiveness. If nothing is done about this and someone dies the Borough Council is likely to be held liable and would have to accept responsibility."

    24. The Borough Council found this persuasive and in 1995 £5,000 was allocated to the scheme. But the work had not yet begun when Mr Tomlinson had his accident. At that time, the beach to which he and his friends had been accustomed to go since childhood was still there. The diggers, graders and planters arrived to destroy it a few months later.

    The scope of the duty under the 1984 Act

    25. The conditions in section 1(3) of the 1984 Act determine whether or not a duty is owed to "another" in respect of "any such risk as is referred to in subsection (1)". Two conclusions follow from this language. First, the risks in respect of which the Act imposes a duty are limited to those mentioned in subsection (1)(a) - risks of injury "by reason of any danger due to the state of the premises or to things done or omitted to be done on them." The Act is not concerned with risks due to anything else. Secondly, the conditions have to be satisfied in respect of the claimant as "another"; that is to say, in respect of a class of persons which includes him and a description of risk which includes that which caused his injury.