Tomlinson (FC) (Original Respondent and Cross-appellant) v. Congleton Borough Council and others (Original Appellants and Cross-respondents)
56. Therefore I think the crucial question is whether the respondent has established that the risk was one to which section 1(3)(c) applies. On this point the reasoning of Ward LJ was contained in paragraph 29 of his judgment:
57. I thought for a time that this reasoning was persuasive, but I have concluded that it should not be accepted because I consider that it is contrary to a principle stated in the older authorities which is still good law. In Stevenson v Glasgow Corporation 1908 SC 1034, 1039 Lord M'Laren stated:
58. In Glasgow Corporation v Taylor  1 AC 44, 61 Lord Shaw of Dunfermline stated:
Lord Shaw then cited with approval the words of Lord M'Laren in Stevenson that "in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures". I think that when Lord M'Laren referred to physical features against which "it is impossible to guard by protective measures" he was not referring to protective measures which it is physically impossible to put in place; rather he had in mind measures which the common sense of mankind indicates as being unnecessary to take. This statement echoed the observation of the Lord President in Hastie v Magistrates of Edinburgh 1907 SC 1102, 1106 that there are certain risks against which the law, in accordance with the dictates of common sense, does not give protection such risks are "just one of the results of the world as we find it".59.
Stevenson and Hastie (which were not concerned with trespassers) were decided almost a century ago and the judgments are couched in old-fashioned language, but I consider that they express a principle which is still valid today, namely, that it is contrary to common sense, and therefore not sound law, to expect an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake or a cliff and to impose a duty on him to do so. In my opinion this principle, although not always explicitly stated, underlies the cases relied on by the appellants where it has been held that the occupier is not liable where a person has injured himself or drowned in an inland lake or pool or in the sea or on some natural feature.
60. In Cotton v Derbyshire Dales District Council (20 June, 1994, unreported) the Court of Appeal upheld the decision of the trial judge dismissing the plaintiff's claim for damages for serious injuries sustained from falling off a cliff. Applying the judgment of Lord Shaw in Glasgow Corporation v Taylor the Court of Appeal held that the occupiers were under no duty to provide protection against dangers which are themselves obvious.
61. In Whyte v Redland Aggregates Ltd  EWCA Civ 2842 the appellant dived into a disused gravel pit and alleged that he had struck his head on an obstruction on the floor of the pit. The Court of Appeal dismissed his appeal against the judgment of the trial judge who held that he was not entitled to damages. Henry LJ stated:
62. In Bartrum v Hepworth Minerals & Chemicals Limited, unreported, the claimant dived from a ledge on a cliff. In order to avoid shallow water he knew that he had to dive out into the pool but he failed to do so and fractured his neck. Turner J dismissed his claim for damages and stated:
63. In Darby v National Trust  PIQR 372 the claimant's husband was drowned whilst swimming in a pond on National Trust property. The Court of Appeal allowed an appeal by the National Trust against the trial judge's finding of liability and May LJ stated at p 378:
64. I also think that the principle stated by Lord M'Laren in Stevenson is implicit in paragraph 34 of the judgment of Lord Phillips of Worth Matravers MR in Donoghue v Folkestone Properties Ltd  2 WLR 1138. In that case the claimant dived from a slipway into Folkestone harbour after midnight in mid-winter. He struck his head on a grid pile under the water adjacent to the harbour wall and broke his neck. The Court of Appeal allowed an appeal by the defendant against the trial judge's finding of liability. The Master of the Rolls stated at pages 1147-1148:
Lord Phillips then went on to state that where a person was tempted by some natural feature of the occupier's land to engage in some activity such as mountaineering which carried a risk of injury, he could not ascribe to "the state of the premises" an injury sustained in carrying on that activity. However in the present case, as I have stated, I incline to the view that the dark and murky water can be viewed as "the state of the premises".
65. Therefore I consider that the risk of the respondent striking his head on the bottom of the lake was not one against which the appellants might reasonably have been expected to offer him some protection, and accordingly they are not liable to him because they owed him no duty. I would add that there might be exceptional cases where the principle stated in Stevenson and Taylor should not apply and where a claimant might be able to establish that the risk arising from some natural feature on the land was such that the occupier might reasonably be expected to offer him some protection against it, for example, where there was a very narrow and slippery path with a camber beside the edge of a cliff from which a number of persons had fallen. But the present is not such a case and, for the reasons which I have given, I consider that the appeal should be allowed.
LORD HOBHOUSE OF WOODBOROUGH
66. In this case the trial judge after having heard all the evidence made findings of fact which are now accepted by the claimant:
67. The claimant has made his claim for personal injuries under the Occupiers' Liability Act 1984 on the basis that at the time that he suffered his injury he was a trespasser in that he was swimming in the mere and swimming was, as he was aware, forbidden. This seems to me to be a somewhat artificial approach to the case; since paddling was apparently allowed but not swimming and the claimant was at the material time in water which only came a little above his knees. However, under the Occupiers' Liability Act 1957 (and at common law) when an invitee or licensee breaches the conditions upon which he has entered the premises, he ceases to be a visitor and becomes a trespasser: s.2(2). The claimant was permitted to enter the park on the condition that (inter alia) he did not swim in the mere. If he should swim in the mere, he broke this condition and as a result ceased to be a visitor. However, like all of your Lordships, I consider that whether he makes his claim under the 1984 Act or the 1957 Act, he does not succeed.
68. The two Acts apply the same general policy and the 1984 Act is a supplement to the 1957 Act. The earlier Act was the result of a re-examination of the common law relating to occupiers' liability. Its primary purpose was to simplify the law. It had previously been based upon placing those coming on another's land into various different categories and then stipulating different standards of care from the occupier in respect of each category. This was the historical approach of the common law to the question of negligence and found its inspiration in Roman law concepts (as was the case in the law of bailment: Coggs v Bernard 2 Lord Raym. 909). By 1957, the dominant approach had become the 'good neighbour' principle enunciated in Donoghue v Stevenson  AC 562. But special rules still applied to relationships which were not merely neighbourly. One such was occupiers' liability. The relevant, indeed, principal simplification introduced in the 1957 Act was to introduce the 'common duty of care' as a single standard covering both invitees and licensees: see s.2(2). The 1957 Act applied only to visitors, ie persons coming onto the land with the occupier's express or implied consent. It did not apply to persons who were not visitors including trespassers. The 1984 Act made provision for when a duty of care should be owed to persons who were not visitors (I will for the sake of convenience call such persons "trespassers") and what the duty should then be, that is, a duty of care in the terms of s.1(3), more narrow than that imposed by the 1957 Act. Thus the duty owed to visitors and the lesser duty which may be owed to trespassers was defined in appropriate terms. But, in each Act, there are further provisions which define the content of the duty and, depending upon the particular circumstances, its scope and extent.
69. The first and fundamental definition is to be found in both Acts. The duty is owed "in respect of dangers due to the state of the premises or to things done or omitted to be done on them". In the 1957 Act it is s.1(1). In the 1984 Act it is in s.1(1)(a) which forms the starting point for determining whether any duty is owed to the trespasser (see also s.1(3)) and provides the subject matter of any duty which may be owed. It is this phrase which provides the basic definition of 'danger' as used elsewhere in the Acts. There are two alternatives. The first is that it must be due to the state of the premises. The state of the premises is the physical features of the premises as they exist at the relevant time. It can include foot paths covered in ice and open mine shafts. It will not normally include parts of the landscape, say, steep slopes or difficult terrain in mountainous areas or cliffs close to cliff paths. There will certainly be dangers requiring care and experience from the visitor but it normally would be a misuse of language to describe such features as "the state of the premises". The same could be said about trees and, at any rate, natural lakes and rivers. The second alternative is dangers due to things done or omitted to be done on the premises. Thus if shooting is taking place on the premises, a danger to visitors may arise from that fact. If speed boats are allowed to go into an area where swimmers are, the safety of the swimmers may be endangered.
70. In the present case, the mere was used for a number of activities - angling, board-sailing, sub-aqua, canoeing and sailing model yachts - but none of these was suggested to have given rise to any danger to the claimant or others. Therefore the claimant has to found his case upon a danger due to the "state of the premises". His difficulty is that the judge has found that there was none and he has accepted that finding. Therefore his case fails in limine. If there was no such danger the remainder of the provisions of the Acts all of which depend upon the existence of such a danger cannot assist him. The claimant clearly appreciated this when he brought his claim since his Statement of Claim specifically pleaded that there had been "an obstruction under the surface of the water" on which he struck his head. The judge found that there was no such obstruction.
71. Section 2 of the 1957 Act deals with the content of the duty (if any). Thus s.2(2) defines the common duty of care as one "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". If swimming is not one of those purposes, the duty of care does not extend to him while he is swimming. Section 2(3) deals with what circumstances are relevant to assessing any duty owed. They include "the degree of care, and of want of care, which would ordinarily be looked for in such a visitor". Examples are given: "(a) An occupier must be prepared for children to be less careful than adults." A skilled visitor can be expected to appreciate and guard against risks ordinarily incident to his skilled activities: s.2(2)(b). An obvious instance of the second example is a steeple jack brought in to repair a spire or an electrician to deal with faulty wiring. Here, the claimant was an 18 year old youth who ought to be well able to appreciate and cope with the character of an ordinary lake. He can take care of himself; he does not need to be looked after in the same way as a child.
72. Turning to the 1984 Act, one can observe the same features. The basic requirement of a "danger due to the state of the premises" is there. Section 1(2) contains a cross-reference to s.2(2) of the earlier Act. Section 1(3) depends upon the existence, and knowledge, of a danger coming within s.1(1). The risk of personal injury arising from that danger must further be one against which, in all the circumstances, it is reasonable to expect the occupier "to offer the [trespasser] some protection". The equivalent phrase "reasonable in all the circumstances" is used in subsections (4) and (5). Subsection (5) specifically permits the use of warnings and discouragements against incurring the relevant risk.
73. It is an irony of the present case that the claimant has found it easier to put his case under the 1984 Act than under the 1957 Act and argue, in effect, that the occupier owed a higher duty to a trespasser than to a visitor. This is because the inclusion of the words in s.2(4), duty "to see that he does not suffer injury on the premises by reason of the danger concerned". The claimant did suffer injury whilst on the premises; the defendants failed to see that he did not. Whilst this argument in any event fails on account of the fundamental point that the state of the premises did not give rise to any danger, it would be perverse to construe these two Acts of Parliament so as to give the 1984 Act the effect which the claimant contends for. (See also the quotation from the Law Commission Report by Brooke LJ in his judgment in Donoghue v Folkestone Properties  2 WLR at pp.1157-8.) The key is in the circumstances and what it is reasonable to expect of the occupier. The reference to warnings and discouragements in subsection (5) and the use of the words "some protection" in subsection (3)(c) both demonstrate that the duty is not as onerous as the claimant argues. Warnings can be disregarded (as was the case here); discouragements can be evaded; the trespasser may still be injured (or injure himself) while on the premises. There is no guarantee of safety any more than there is under the 1957 Act. The question remains what is it reasonable to expect the occupier to do for unauthorised trespassers on his land. The trespasser by avoiding getting the consent of the occupier, avoids having conditions or restrictions imposed upon his entry or behaviour once on the premises. By definition, the occupier cannot control the trespasser in the same way as he can control a visitor. The Acts both lay stress upon what is reasonable in all the circumstances. Such circumstances must be relevant to the relative duties owed under the two Acts.
74. Returning to the facts of this case, what more was it reasonable to expect of the defendants beyond putting up the notices and issuing warnings and prohibitions? It will not have escaped your Lordships that the putting up of the notices prohibiting swimming is the peg which the claimant uses to acquire the status of trespasser and the benefit of the suggested more favourable duty of care under the 1984 Act. But this is a case where, as held by the judge, all the relevant characteristics of this mere were already obvious to the claimant. In these circumstances, no purpose was in fact served by the warning. It told the claimant nothing he did not already know. (Staples v W Dorset  PIQR 439, Whyte v Redland (1997) EWCA Civ 2842, Ratcliffe v McConnell  1 WLR 670, Darby v National Trust  PIQR 372.) The location was not one from which one could dive into water from a height. There was a shallow gradually sloping sandy beach. The bather had to wade in and the claimant knew exactly how deep the water was where he was standing with the water coming up to a little above his knees. The claimant's case is so far from giving a cause of action under the statute that it is hard to discuss coherently the hypotheses upon which it depends. There was no danger; any danger did not arise from the state of the premises; any risk of striking the bottom from diving in such shallow water was obvious; the claimant did not need to be warned against running that risk; it was not reasonable to expect the occupier to offer the claimant (or any other trespasser) any protection against that obvious risk.
75. Faced with these insuperable difficulties and with the fact that they had failed to prove the pleaded case, counsel for the claimant put the argument in a different way. They pointed to the internal reports and minutes disclosed by the defendant councils. Passing over a minute of 22nd November 1984 which under the heading "Swimming" accurately stated
they referred to an undated report of some time in 1992 concerning swimming in the mere. It reported many instances of swimming during hot spells with up to 2,000 people present and as many as 100 in the water. It referred to the popularity of the extensive beach areas with families where children paddled and made sand castles and groups picnicked, adding "not unnaturally many [people] will venture into the water for a swim". The "hazards" pointing to the likelihood of future problems were stated to include "lakeside grassy picnic area". The recommendations were directed at the beach areas: "Suggest cutting down on beach area by increasing reed zones". "Signs should indicate the nature of the hazard e.g. 'Danger - Water 5m. deep'. It is clear that accidents such as that suffered by the claimant were not in the writer's mind. Other similar reports are referred to in the Opinion of my noble and learned friend Lord Hoffmann and it is otiose to quote from them again.
76. In July of the same year a departmental memorandum referred to the council's policy to stop all swimming. It therefore called upon the council to engage on a scheme of landscaping to make "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". The solution called for was to remove or cover over the beaches and replace them by muddy reed beds. Part of the reasoning was that with attractive beaches "accidents become inevitable" and "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." An estimate of cost was asked for.
77. Funds were short but in 1994 a request for finance was presented. It was based upon the public's disregard of the embargo on bathing in the lake despite having "taken all reasonable steps" to educate the public. The request states that "we have on average three or four near drownings every year and it is only a matter of time before someone dies". "If nothing is done about [the landscaping] and someone dies the Borough Council is to be held liable and would have to accept responsibility." This was the nub of the claimant's case. The situation was dangerous. The defendants realised that they should do something about it - remove the beaches and make the water's edge unattractive and not so easily accessible. They recognised that they would be liable if they did not do so. This reasoning needs to be examined.
78. The first point to be made is that the councils were always at liberty, subject to the Local Government Acts, to have and enforce a no swimming policy. Indeed this had all along been one of the factors which had driven their management of this park. Likewise, subject to the same important qualification, they were at liberty to take moral responsibility for and pay compensation for any accident that might occur in the park. It is to be doubted that this was ever, so stated, their view. But neither of these factors create any legal liability which is what is in question in the present case. If they mistakenly misunderstood what the law required of them or what their legal liabilities were, that does not make them legally liable.
79. The second point is the mistreatment of the concept of risk. To suffer a broken neck and paralysis for life could hardly be a more serious injury; any loss of life is a consequence of the greatest seriousness. There was undoubtedly a risk of drowning for inexperienced, incompetent or drunken swimmers in the deeper parts of the mere or in patches of weed when they were out of their depth although no lives had actually been lost. But there was no evidence of any incident where anyone before the claimant had broken his neck by plunging from a standing position and striking his head on the smooth sandy bottom on which he was standing. Indeed, at the trial it was not his case that this was what had happened; he had alleged that there must have been some obstruction. There had been some evidence of two other incidents where someone suffered a minor injury (a cut or a graze) to their head whilst diving but there was no evidence that these two incidents were in any way comparable with that involving the claimant. It is then necessary to put these few incidents in context. The park had been open to the public since about 1982. Some 160,000 people used to visit the park in a year. Up to 200 would be bathing in the mere on a fine summer's day. Yet the number of incidents involving the mere were so few. It is a fallacy to say that because drowning is a serious matter that there is therefore a serious risk of drowning. In truth the risk of a drowning was very low indeed and there had never actually been one and the accident suffered by the claimant was unique. Whilst broken necks can result from incautious or reckless diving, the probability of one being suffered in the circumstances of the claimant were so remote that the risk was minimal. The internal reports before his accident make the common but elementary error of confusing the seriousness of the outcome with the degree of risk that it will occur.