Ipsofactoj.com: International Cases [2005] Part 6 Case 13 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Tomlinson

- vs -

Congleton Borough Council

LORD JUSTICE WARD

LORD JUSTICE SEDLEY

LORD JUSTICE LONGMORE

14 MARCH 2002


Judgment

Lord Justice Ward

  1. This appeal concerns an accident with very severe consequences which happened on 6th 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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 (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).

  8. Jack J. found against the claimant. His essential conclusions were these:

    27.

    In his cross-examination Mr. Tomlinson accepted that he knew that he should not dive in shallow water where he might hit the bottom. He accepted that he could not see the lake bed, that he assumed that it was sufficiently deep to dive without hitting the bed, and that he should have checked. These were important answers but in reality they were a necessary acceptance of the obvious. In short, Mr. Tomlinson took a risk.

    28.

    A duty arises by reason of section 1(3) of the 1984 Act if three matters are satisfied. First, there must be a risk of which the occupier was aware (or had reasonable grounds to believe existed). The risk here was not the risk of drowning through for example, exhaustion or cramp, but the risk of injury through diving – which might include drowning consequent on a direct injury. The defendants were aware of this danger: I refer in particular to the two head injuries in 1992. The second is satisfied if the occupier knows that the claimant may come into the vicinity of the danger. That was the case here. The third is that, in all the circumstances of the case, the risk was one against which the occupier may reasonably be expected to offer the claimant some protection. It was submitted on behalf of the defendants that this was not satisfied. Where there is a duty, section 1(4) provides that it is to take such steps as are reasonable in all the circumstances to give warning of the danger concerned or to discourage persons from incurring that risk. In the circumstances of this case at least, consideration of the third requirement under section 1(3) and consideration of the duty under section 1(4) cover much the same ground.

    29.

    In my view the danger and risk of injury from diving in the lake where it was shallow were obvious. That is my conclusion on the evidence in the case. It concurs with the conclusions reached in the cases which I have cited. On the basis of Darby v National Trust that is really the end of the matter. For the essence of that case – a 1957 Act case – and others is, in my view, that an occupier is not under a duty to warn against a risk which is obvious. But, if I take a step further and say that the history showed some protection was required because of the attractions of the lake, then I would hold that the signs were reasonable and sufficient steps to give warning of the danger and to discourage persons from incurring the risk. It can be said that despite the signs people continued to go into the water. That was a decision which they were free to make: they could choose to accept the risk. I do not think that the defendants’ legal duty to the claimant in the circumstances required them to take the extreme measures which were completed after the accident involving the fencing off of the areas where people went into the water and the planting of the beaches with trees. I should add that I reject the submission that by putting the warning signs on the beaches the defendants were inviting swimming elsewhere. That is lacking in realism. If the water was dangerous off the beaches, it was plainly at least as dangerous elsewhere.

    30.

    I also consider that an alternative route to the answer in this case is under section 1(6). For, by diving as he did, Mr. Tomlinson willingly accepted the risk involved.

    34.

    Finally, if I am wrong and the defendants were in breach of duty to the claimant, the question of contributory negligence would arise. In my view, on the facts and circumstances which I have set out it would be appropriate to apportion the responsibility for the injury as to one third to the defendants and two thirds to the claimant. I do so on the basis that Mr. Tomlinson dived in very shallow water, knowing of the notices warning of the danger.

  9. Mr. Braithwaite QC, having taken this court through the authorities which Jack J had considered in detail, and having drawn attention to the way the dangers had been considered by the authorities, submitted that if Jack J’s decision was right, an occupier’s liability is discharged simply by the display of notices even where the locus is a public resort, where it is perceptible that the notices do not have the required effect, and where alternative measures which will be effective are manifest but are not undertaken. The duty, he submits, was to do what was practicable to prevent the occurrence of accidents, not merely to warn people that they might occur. As to contributory negligence, he submits that no more than one third of the blame can properly rest upon the claimant.

  10. Mr. Machell QC submits that in the circumstances found by the judge the defendants owed the claimant no duty; or that if they did, it was discharged by the display of warning notices. He relies in particular upon the judge’s finding that there was nothing about this lake which made it more dangerous than any other stretch of open water, and that the risk of injury from diving where the lake was shallow was obvious. This was not a case where an unpredictable declivity in the lake bed had caused a child to lose its footing and drown (which, Mr. Machell accepted, would have attracted liability): this was a case of an adult choosing to dive into shallow water.

  11. Mr. Braithwaite meets this argument initially by submitting that the judge has adopted two erroneous premises in reaching his conclusion. He has expressly treated the lake as no more dangerous than any other ordinary open stretch of water, when the chief reason for keeping swimmers out was precisely that it was treacherous underfoot. And he has taken the risk to be not the generalised risk that anybody entering the water might, albeit in a possibly unpredictable way, have a nasty accident, but as the specific risk of injury through diving. If so, he argues, the conclusion must be arrived at afresh by this court on a correct factual and legal basis.

  12. Like the judge, we have reviewed various authorities. I must deal with them, albeit shortly. The first is Staples v West Dorset District Council [1995] P.I.Q.R. 439. There the plaintiff was crouching on a plainly visible dark layer of the algae-covered slope of the harbour wall to which the public had access as a promenade. He slipped and suffered serious injury. His claim was brought under the Occupier’s Liability Act 1957 and he contended that the council ought to have erected a sign warning that the Cobb was slippery particularly when wet. Kennedy L.J. with whom the other members of the court agreed held at p.442:-

    It is, in my judgment, of significance that the duty is a duty owed by the occupier to the individual visitor, so that it can only be said that there was a duty to warn if without warning the visitor in question would have been unaware of the nature and extent of the risk. As the statute makes clear, there may be circumstances in which even an explicit warning will not absolve the occupier from liability (see s.4(a) above); but if the danger is obvious, the visitor is able to appreciate it, he is not under any kind of pressure and is free to do what is necessary for his own safety, then no warning is required.

    One should, however, not pass from the judgment without noting His Lordship’s further comment at p.445:-

    Of course, after the accident the position was different. The appellants then knew that a visitor had slipped off the edge into the sea, and, as responsible occupiers, they had to do what they could to prevent a recurrence, so they posted warning notices. The fact that they took that action after the accident does not enable me to draw the inference that, in order to discharge the common duty of care to the respondent, they should have done so before the accident occurred.

  13. Whyte v Redland Aggregates Ltd. is an unreported decision of this court handed down on 27th November 1997. The plaintiff hit his head when diving into the water in a disused gravel pit owned by the defendants. Again it was a case on the common duty of care under the 1957 Act. The plaintiff’s complaints were that the occupiers had failed to find out about the uneven state of the bottom of the pit and had failed to give proper warnings as to the danger. There had been no previous accidents. Hirst L.J. dismissed the appeal after an analysis of the facts. Henry L.J. agreed but added this:-

    In my judgement, the occupier of land containing or bordered by the river, the seashore, the pond or the gravel pit, does not have to warn of uneven surfaces below the water. Such surfaces are by their nature quite likely to be uneven. Diving where you cannot see the bottom clearly enough to know that it is safe to dive is dangerous unless you have made sure, by reconnaissance or otherwise that diving is safe i.e. that there is adequate depth at the place where you choose to dive. In those circumstances, the dangers of there being an uneven surface in an area where you cannot plainly see the bottom are too plain to require a specific warning and, accordingly, there is no such duty to warn ....

    Harman J. added pungently:-

    There is far too much open water in this island where riparian owners are private citizens for a duty of such a wide general nature to be easily imposed by the law.

  14. Ratcliff v McConnell [1999] 1 W.L.R. 670 concerned an inebriated student ignoring all clear warnings climbing over a locked gate and diving more steeply into the shallow end of the pool than he intended. Giving a judgment with which the other members of the court agreed Stuart-Smith L.J. said at p.681:-

    Even if the defendants knew or had reasonable grounds to believe that students might defy the prohibition on use of the pool and climb over the not insignificant barrier of the wall or gate, it does not seem to me that they were under any duty to warn the plaintiff against diving into too shallow water, a risk of which any adult would be aware and which the plaintiff, as one would expect, admitted that he was aware. Had there been some hidden obstruction in the form of an extraneous object in the pool or a dangerous spike, of which the defendants were aware, the position might have been different.

    Stuart-Smith L.J. added two other pertinent comments. First he said at p.680:-

    .... it is important to identify the risk or danger concerned since the occupier had to have knowledge of it or reasonable grounds to believe it exists: section 1(3)(a).

    At p.683 he said:

    The duty, if any, is owed to the individual trespasser, though he may be a member of a class that the occupier knows or has reasonable grounds to believe is in the vicinity of the danger. But the danger of and extent of what it is reasonable to expect of the occupier varies greatly depending on whether the trespasser is very young or very old and so may not appreciate the nature of the danger which is or ought to be apparent to an adult.

  15. Bartrum v Hepworth Minerals & Chemicals Ltd. is an unreported decision of Turner J. given on 29th October 1999. The claimant dived from a ledge on a cliff and struck his head on the bottom of an old quarry. There was a history of swimming accidents and signs warning against swimming were being ignored. Turner J. held that the danger of not diving far enough out from the cliff to enter the deep water was so obvious to any adult that it was not reasonably to be expected of the defendants that they would offer any protection. Even if there was a duty, a sign warning “No Swimming” was:

    .... authoritative for the proposition that people were not expected to swim in the lake, whether they entered it by walking or wading, or by jumping or diving; the greater must it seems to me include the less.

  16. The latest swimming case is Darby v The National Trust decided by the Court of Appeal on 29th January 2001. The claim was brought under the Occupier’s Liability Act. There were no warning signs. A little unusually leading counsel and junior counsel for the claimant put forward different propositions. Leading counsel accepting the difficulty that the risk of death by drowning was foreseeable submitted that the warning should have included a warning against the possibility of contracting Weils disease. Junior counsel submitted there was no proper correlation between the risk of swimming in the sea and of swimming in that particular pond. The Court of Appeal did not agree with him. May L.J. said:

    It cannot be the duty of the owner of every stretch of coastline to have notices warning of the dangers of swimming in the sea. If it were so, the coast would have to be littered with notices in places other than those where there are known to be special dangers which are not obvious. The same would apply to all inland lakes and reservoirs. In my judgment there was no duty on the National Trust on the facts of this case to warn against swimming in this pond where the dangers of drowning were no other or greater than those which were quite obvious to any adult such as the unfortunate deceased.

  17. When giving permission to appeal Henry L.J. drew attention to some obiter comments of Simon Brown L.J. in Scott v Associated British Ports and British Railways Board, an unreported decision of the Court of Appeal handed down on 22nd November 2000, to the effect that:-

    .... let us postulate (contrary to the facts) that the defendants here had known full well that dozens of youngsters in the 13-15 age group routinely surfed on their rails in the manner of these appellants and that a simple fence would have been wholly effective in eliminating this practice. Could it really then be said that they were under no duty to erect such a fence; or, indeed, that a youth who came to be injured while surfing had accepted the risk and therefore was owed no duty of care? I hardly think so. For my part, indeed, I would recognise that on certain facts a comparable duty would be owed by occupiers to trespassers who they know are consciously imperilling themselves on their land to that owed by police or prison officers to those known to be of suicidal tendency in their care – see Reeves v Commissioner of Police of the Metropolis [2000] 1 A.C. 360. All that, however, is for another day and another case.

    Mr. Braithwaite submits that today is the day and this is the case.

  18. Mr. Braithwaite did rely also on Jebson v Ministry of Defence [2000] 1 W.L.R. 2055 but I do not find the authority helpful as it concerns a duty of care as carriers to passengers being carried in an army lorry. The case is, however, convenient for its citation of a passage in the speech of Lord Steyn in Jolley v Sutton London Borough Council [2000] 1 W.L.R. 1082, 1089:-

    Two general propositions are, however, appropriate. First, in this corner of the law the results of decided cases are inevitably very fact-sensitive. Both counsel nevertheless at times invited your Lordships to compare the facts of the present case with the facts of other cases. That is a sterile exercise. Precedent is a valuable stabilising influence in our legal system. But, comparing the facts of an outcome of cases in this branch of the law is a misuse of the only proper use of precedent, viz., to identify the relevant rule to apply to the facts as found.

    I respectfully agree.

  19. In that search for principle, I have found it useful to trace the development of the law. The extreme position was taken by Robert Addie & Sons (Colleries) Ltd. v Dumbreck [1929] A.C. 358 which established the rule that an occupier was only liable to a trespasser if he did “some act .... with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser”. The harshness of that rule was ameliorated by Herrington v British Railways Board [1972] A.C. 877 which discarded the Addie test and substituted a test, variously expressed, but usually summed up as the test of “common humanity”. That prompted the Law Commission’s enquiries and their report on Liability for Damage or Injury to Trespassers and related questions of Occupiers’ Liability was presented in March 1976 (Law Com. No. 75). The Law Commission proposed steering a path between extending the common duty of care to trespassers and treating trespassing as an activity to be undertaken at the trespasser’s risk with there being no duty on the occupier to make his land safe for persons whom the occupier did not desire to be present on his land at all. The result was the Occupiers Liability Act 1984, the terms of which I have already recited.

  20. Since the Act defines when an occupier of premises owes a duty to another, and if so what the standard of care is, it is in my view essential to use the Act as a template for judgment in each and every case. I do not wish to suggest that the decisions in the cases I have recited are wrong but I have found it useful to warn myself that a finding that a risk was obvious is a statement of a conclusion, not the application of a principle. For the principle one must look to the Act. It is a staged process.

  21. The first stage under section 1(1) is to identify the risk and the danger. The risk is expressed to be to persons other than visitors 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). In this case there was a risk of injury being suffered by anyone entering the water because of the dangers due to the state of the premises, the premises being constituted by the configuration and contents of this pond created as it was from a disused sand-extraction pit. There was a risk of injury through drowning because of the dangers, among others, of the effect of cold water, being caught in weed, being stuck in the mud or plunging unexpectedly into deep water. There was the risk of injury through diving because of the dangers of diving too steeply in shallow water or into an obstruction. There may have been risks of other injury from other dangers, e.g. Weils disease. These risks of injury arose as soon as one entered the water because one did not know what danger lurked, or where it lay hidden. The exact nature of the hazard may not much matter in the particular circumstances of this case.

  22. The next stage is to determine whether or not a duty was owed by the occupier. That question depends solely upon whether the three criteria of section 1(3) are satisfied.

  23. The first is whether the occupier was aware of the danger. Here that is beyond question. But a few of the records will suffice to indicate the extent of the defendants’ knowledge. The Brereton Heath Management Advisory Group was established in January 1983. At the end of its first year the minutes of 21st November 1983 record that:-

    The risk of a fatality to swimmers was stressed and agreed by all.

    A Water Safety Site Visit of 11th May 1990 recorded:-

    Many instances of swimming during hot spells. During such times up to 2,000 people are present with as many as 100 in the water. ... Extensive “beach” areas are popular with families ... Not unnaturally many will venture into the water for a swim.

    Hazards.

    (iii)

    Long history of swimming activity here (a “known” spot for swimming).

    An accident was recorded on 19th May 1992 when a man dived into the lake and “hit head on something”. The following week a person was pulled unconscious from the lake and had to be resuscitated.

    The Management Committee reported on 9th June 1992:-

    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. As a result of the general flaunting of the policy [to ban swimming] 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.

  24. On 23rd July 1992 the Leisure Services Department wrote:-

    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 waters-edge activities despite the cautionary note that is struck by deterrent notices etc., and in that type of situation accidents become inevitable.

    The Cheshire Water Safety Committee meeting on 5th October 1993 noted that:-

    The site has a history of near drownings.

    In a resolution put to the Borough Council on 21st November 1999 it was noted that:-

    We have on average three or four near drownings every year and it is only a matter of time before someone dies.

    The claimant suffered his injuries six months later.

  25. The second criterion to establish whether a duty is owed is provided by section 1(3)(b), namely that the occupier knows or has reasonable grounds to believe that the other person is in the vicinity of the danger concerned. Again this has not been in dispute. The minutes I have cited establish that and there is more to like effect. It is quite clear that the park was a very popular venue and despite all efforts to impose the ban on swimming, it was known to the defendants that many entered the water and were in the vicinity of the dangers concerned.

  26. The third, and in this case crucial, requirement laid down by section 1(3)(c) is whether the risk was one against which, in all the circumstances of the case, the occupiers might reasonably be expected to offer the trespasser some protection. Analysing that, the protection is against any such risk as is referred to in sub-section 1, the risk, that is, of the trespasser suffering injury by reason of the dangers lurking in the mere. The protection we are looking for is “some protection”. The question is whether some protection might reasonably be expected to be offered. The question is not whether reasonable protection is to be expected. To frame the question that way is to fail to distinguish between the establishing of the duty under section 1(3) and the standard of care necessary to satisfy the duty which is provided by section 1(4). These are distinct and separate requirements and I am concerned that the judge may have failed to keep them separate and distinct when he said:-

    In the circumstances of this case at least, consideration of the third requirement under section 1(3) and the consideration of the duty under section 1(4) cover much the same ground. In my view the danger and risk of injury from diving in the lake where it was shallow were obvious .... an occupier is not under a duty to warn against a risk which is obvious.

  27. There is a further important phrase in section 1(3)(c): the question is whether some protection might reasonably be expected to be offered “in all the circumstances of the case”. This serves to emphasise Lord Steyn’s observation that cases are “inevitably very fact-sensitive”.

  28. The circumstances of this case are that Brereton Heath Park has for years been a well-known and well-used leisure attraction. The minutes show that in 1992 160,000 used the park during the year. During a hot spell 2,000 people were present with as many as 100 in the water. The lake was a magnet to the public and the sandy beaches an invitation to swim. Of major concern to the occupiers was the unauthorised use of the lake and the increasing possibility of an accident. As minutes of the advisory group held as long ago as 17th March 1988 record:-

    On busy days the overwhelming numbers make it impossible to control this use (swimming and the use of rubber boats) 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.

  29. In discharge of the common duty of care owed to the visitors under the Occupier’s Liability Act 1957, the authorities placed prominently signs which forbade swimming and warned of the “dangerous water”. In entering the water against that prohibition, the claimant made himself a trespasser to whom a different duty was now owed. If the words on the notice board “NO SWIMMING” qualified the use he was permitted to make of the facility, do the other words above or below that, “DANGEROUS WATER” constitute some protection against the risk of injury if the person decides to take a swim? I think that maybe too narrow a view of a warning notice which serves a composite purpose of turning a visitor into a trespasser and also warning him of a danger. But this case does not rest there. The misuse of the facility, the extent of the unauthorised swimming, the history of accidents and the perceived risk of fatality was noted and acted upon by the occupiers over many years. They did not, as may have been the fact in some of the other decided cases, treat the notice as sufficient to discharge any duty that might be owed. Here the authorities employed rangers whose duty it was to give oral warnings against swimming albeit that this met with mixed success and sometimes attracted abuse for their troubles. In addition to the oral warnings, the rangers would hand out safety leaflets which warned of the variable depth in the pond, the cold, the weeds, the absence of rescue services, waterborne diseases and the risk of accidents occurring. It seems to me that the ranger’s patrols and advice and the handing out of these leaflets reinforced the ineffective message on the sign and constituted “some protection” in fact given and reasonably expected to be offered in the circumstances of this case. Congleton Beach, as the place was also known, was as alluring to “macho” young men as other dangerous places were to young children. In my judgment the gravity of the risk of injury, the frequency with which those using the park came to be exposed to the risk, the failure of warning signs to curtail the extent to which the risk was being run, indeed the very fact that the attractiveness of the beach and the lake acted as a magnet to draw so many into the cooling waters, all that leads me to the conclusion that the occupiers were reasonably to be expected to offer some protection against the risks of entering the water. It follows that in my judgment the defendants were under a duty to the claimant.

  30. The standard of care is defined by section 1(4). It 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”. By now the focus has to be on the duty owed to the individual claimant whereas at the earlier stages of the inquiry it was probably more accurate to think of the duty owed to the claimant as a member of a class of persons, young or old, nefariously on the premises or using them to the occupier’s knowledge, if not with his permission. The Law Commission rejected the invitation to give guidelines for determining what may reasonably be expected of an occupier. I should do likewise. Whilst, therefore, this does not pretend to be a checklist, it is obvious that among the facts and circumstances which inevitably will have to be taken into account – and this is not an exhaustive list by any means – the court will have regard to the age and character of the claimant, the nature and purpose of the trespassory entry on the premises, the extent to which any protective steps which were taken had proved to have been inadequate, the difficulty or ease with which steps could be taken to reduce or eliminate the danger and the question of the cost of taking those precautions balanced against the gravity of the risks of injury. Once again the key words are “reasonable in all the circumstances of the case”.

  31. Before looking at the matter generally, the question under section 1(5) arises first. Is this an appropriate case where the duty can be said to have been discharged by the warnings given of the danger concerned and the discouragement to persons from incurring the risk of injury from that danger? Sub-section 5 expressly recognises that the giving of a warning “may” in an appropriate case, discharge the duty. It follows that a warning does not necessarily or inevitably discharge the duty. In the time-honoured phrase, it must all be a matter of fact and degree. That, in my judgment, is the weakness of the judgment under appeal. The judge found that the risk was obvious, which means no more than that the claimant acknowledged the inevitable, namely that diving into water where one cannot see the bottom creates the risk that one will dive too steeply and so suffer injury. That may be a sufficient answer in many cases, perhaps even most cases. But here the history both of the danger and of the exposure to it drove the authorities inevitably, and rightly, to the conclusion that warnings were not working. The authorities were inviting public use of this amenity knowing that the water was a siren call strong enough to turn stout men’s minds. In my judgment the posting of notices, shown to be ineffective, was not enough to discharge the duty.

  32. The next question is whether the claimant willingly accepted as his the risk of his suffering injury from the dangers concerned. There are, in my judgment, two answers to this. The first is that the appellant did not freely and voluntarily accept the risk. For the defence to succeed it must be shown that he had full knowledge of the nature and extent of the risk he ran and impliedly agreed to incur it. I accept the submission made on the appellant’s behalf that he made an assumption which was erroneous that it was safe to dive. He did not know that the water where he dived was so shallow and the dive he made so steep that he would be injured. There were risks in general but he thought that what he did was safe. He did not freely and voluntarily wish the injury on himself. The second point is that if the duty on the respondents was to take reasonable steps to prevent the appellant from diving into the mere, then the respondents concede that they could not seek to argue that in diving into the mere the appellant voluntarily assumed the risk of injury attendant upon such act. I have identified the risk of injury to be the risk of entering the water but, in agreement with Turner J., the greater includes the less and consequently upon entering the water there is a risk of diving into it.

  33. The crucial question is, therefore, whether there was a breach by the defendants of the duty owed to the claimant. What care was it reasonable in all the circumstances of this case for the authorities to take to see that the claimant did not suffer injury on the premises by reason of the danger concerned? The defendant’s own documents provide the answer. The recommendation after a Water Safety Site Visit on 11th May 1990 was:-

    The creation of beach areas is a great encouragement for people to indulge in beach-type activities and this includes swimming. Suggest cutting down on beach area by increasing reed zones.

  34. Dealing with water safety in Cheshire, a meeting on 25th May 1990 noted that precautions against the hazards of swimming included introducing reed beds in littoral zones and planting shrubs on the littoral zone. It was said that precautions which could easily be implemented should be undertaken with immediate effect.

  35. On 7th December 1992 the minutes of the Congleton Countryside Progress Meeting reveal that the estates department was being asked for a plan and costings for covering the beach areas.

  36. When the rangers met on 19th January 1994 the Borough Council’s area service manager stated that a decision had been taken by the Council to remove the beaches; that £10,000 had been allocated for that purpose but that the proposal had not been activated because of financial restraint. At the same time Mr. Tyler-Jones, the chairman of the Cheshire Water Safety Committee was reporting that his major recommendation to remove the beaches had not been carried out. Later in March he recommended a reputable landscape architect to advise on suitable plant species to reclaim the water margins. The Brereton Heath Park Management Advisory Group were told in July 1994 that the 1994/5 bid for landscaping the beaches had been rejected but there was the possibility of money being left at the end of the year to do one beach at a time. The following month, on 10th August, “all agreed on the urgency to take action to landscape the beaches to deter swimming”. In putting forward a recommendation to cover the beach with soil and planting the margin of the water with reeds and other aquatic plants at a capital cost of £15,000 it was stated that:-

    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 Water Safety 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.

    At a meeting of the community services committee of the borough council on 21st November the general capital programme for 1995/96 allocated £5,000 for safety improvements to the Brereton Heath Country Park.

    The work of covering the beach with topsoil and planting the beaches began shortly before this accident.

  37. In my judgment the defendants, prudent and responsible as they showed themselves to be, came under a duty to the claimant to carry out the landscaping and planting that was recommended in the minutes I have recited. The carrying out of the work presented no practical problems and if carried out was likely to prove to be and in fact did turn out to be an effective deterrent to swimming in the mere. The expense, be it £5,000 or £15,000, was not excessive, especially having regard to the serious risk of injury from the accident that was waiting to happen.

  38. It follows that in my judgment the defendants were in breach of a duty they owed the claimant to take reasonable care to see that he did not suffer injury at the country park by reason of the dangers which awaited those who entered the water for a swim.

  39. The final question is the extent to which the court thinks it just and equitable that the damages recoverable be reduced having regard to the claimant’s share in the responsibility for the damage. The judge would have assessed his contribution at two-thirds, an apportionment Mr. Machell supports whereas Mr. Braithwaite submits the proportions be reversed – one-third to the claimant, two-thirds to the defendant. The claimant knew he should not enter the water and he took some risk. The defendants knew that someone was bound to do just that sooner or later and that comparatively simple remedial steps would absolve them from responsibility. If the matter had been left to my judgment, I would have held that the relative share of blameworthiness and the relative importance of the acts and omissions in causing this damage fell equally on claimant and defendant. However, this court is always loath to interfere with an assessment of contributory negligence even where the judge expressed his conclusions from the difficult position that he had already found against the claimant. Since my Lords, whose judgments I have been able to read in draft, would not interfere with the judge’s apportionment, I recognise that my views should not be imposed.

  40. I do not pretend to have found this case easy. My views have swung one way and the other. That admitted, I am satisfied now that the appeal must be allowed and the matter must be remitted to the High Court for the assessment of damages to be reduced by two-thirds for the claimant’s contributory negligence.

    Lord Justice Sedley

  41. I agree with Lord Justice Ward that this appeal should be allowed. But because I have read Lord Justice Longmore’s judgment in favour of dismissing the appeal, I add some brief reasoning of my own.

  42. I do not consider that it is appropriate to reason out a claim like the present one from its consequences. If the logic of our decision is that other public lakes and ponds require similar precautions to those which were lacking at Brereton Heath, so be it. But negligence is fact-specific, and we are able neither to determine what the occupiers’ duties are in other places nor to predicate our decision on what its effect on those occupiers might be. We are creating no duty and no standard of care which is not already laid down by Parliament. Our task, like that of the trial judge, is simply to apply a general law to specific facts.

  43. The other matter to which Lord Justice Longmore draws attention is the particularity of the hazard to which the claimant fell prey. It is, I agree, an apparent oddity that a person who is injured by diving into shallow water – a pretty obvious hazard - should be able to claim the benefit of precautions which in reality were needed in order to stop people losing their footing where the lake bed shelved steeply or becoming entangled in thick weeds. But there are two separate answers, one relating to the obviousness of the hazard, the other to its nature.

  44. As to the nature of the hazard, it was rightly not argued by the respondents that this could make the difference between liability and no liability in the present case. It is well settled by authority that if there is a duty to protect people against foreseeable injury, it does not matter if the accident which happens was not itself foreseeable, so long is it is not in an entirely different league: see Hughes v Lord Advocate [1963] AC 837; Smith v Leech Brain and Co Ltd [1962] 2 QB 405.

  45. If primary liability is established, the obviousness of the hazard goes to contributory negligence; for it is only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability. Even so, in a gross case contributory negligence can approach one hundred per cent. This is not such a case, but it is a case in which the claimant did something which he was old enough to realise was stupid – not so much by entering the mere (everyone was doing that, and the defendants had failed to take reasonable measures to stop it) but by diving steeply from a standing position in a couple of feet of water. I see no reason to differ from Jack J’s contingent assessment of the claimant’s share of responsibility for his consequent misfortune as two thirds.

  46. The nub of the respondents’ case was that the mere did not present any unusual or special risks at all. As to this, the logic of Lord Justice Ward’s judgment seems to me compelling, and I do not need to add to it. I would accordingly allow the appeal and direct entry of judgment for one third of the damages to be assessed.

    Lord Justice Longmore

  47. One of the dangers of going for a swim in any stretch of water other than a dedicated swimming pool is that the swimmer may slip and injure himself. He may also quickly find himself out of his depth and be unable to cope; he may get cramp or be assailed by the coldness of the water and be unable to recover. All these are obvious dangers to anyone except a small and unaccompanied child. Another danger is that a swimmer may decide to dive into the water and hit his head on the bottom, if the water is too shallow; in my judgment that is an equally obvious danger and cannot provide a reason for saying that the owner or occupier of the water should be under any duty to take reasonable steps to prevent people swimming or diving in the relevant stretch of water.

  48. The position would, of course, be different if the occupier knew of some concealed danger or some danger that was not obvious to people using the water. But in this case Jack J has held in terms 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. The judge thought (and I agree) that if there was a duty to take reasonable steps to prevent public access for the purpose of swimming at Brereton Heath, similar steps would have to be taken in relation to other stretches of open water in the country.

  49. Mr. John Tomlinson has suffered appalling injuries as a result of his unfortunate dive while enjoying the water on a warm May Bank Holiday week-end in 1995. Mr. Braithwaite QC on his behalf has submitted that the mere at Brereton Heath was a special case different from other stretches of water because:-

    1. the Heath was a managed site where the Defendants encouraged the public to go to spend their leisure time;

    2. the Defendants knew that accidents were liable to happen (and, indeed, had happened on 3 previous occasions); and

    3. the Defendants were in the process of taking steps to eliminate injuries from swimming accidents in that they:

      1. put up signs prohibiting swimming;

      2. when it became clear that the signs were being ignored, they were advised that the beaches on the mere should be fenced off and covered in vegetation but had not got round to doing this by the time of Mr. Tomlinson’s accident.

  50. I do not consider that these factors either singly or together make the mere at Brereton Heath different from other stretches of open water. The fact that the Defendants arranged and even promoted the site for leisure activity does not mean that they should have taken reasonable steps to prevent swimming unless they knew of any particular hazard. Even then it would probably be sufficient to give a warning in relation to that hazard. There was here no allegation or evidence of any particular hazard, beyond the ordinary hazards of swimming in open water.

  51. The fact that during the Defendants’ management of the site 3 accidents had occurred to people swimming in the mere cannot of itself impose a duty of care since swimming in open stretches of water is often an inherently dangerous activity. It would only be if the number of accidents was significantly above the norm that any duty could arise and that would then be because it would be possible to conclude that there was a particular hazard in relation to the stretch of water (even if the hazard might not at first be easily identifiable). Likewise, the fact that a local authority may responsibly seek to deter or prevent swimming does not to my mind give rise to any duty to an individual member of the public or the public at large to take steps to prevent people swimming, unless there is a particular hazard (over and above the ordinary risks of swimming) about which the public should know.

  52. I should add that, for myself, I would have reached the same conclusion even if the appellant had not conceded that he was a trespasser. I find it odd that if there is a general licence to the public to come to a park for leisure activities but there are notices which prohibit swimming, someone who enters the water intending to swim becomes a trespasser. 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.

  53. For these reasons which are much the same as those given by this court in Derby v National Trust it seems to me that this appeal should fail. It is noteworthy that the Supreme Court of Canada seems to have come to a similar conclusion in relation to a similar stretch of water in British Columbia, see Vancouver-Fraser Park District v Olmstead (1974) 51 DLR 3d 416.

  54. On contributory negligence, I would not interfere with the judge’s apportionment.


Cases

Staples v West Dorset District Council [1995] P.I.Q.R. 439; Whyte v Redland Aggregates Ltd., unreported, 27th November 1997; Ratcliff v McConnell [1999] 1 W.L.R. 670; Bartrum v Hepworth Minerals & Chemicals Ltd., unreported, 29th October 1999; Darby v The National Trust, unreported, 29th January 2001 (CA); Scott v Associated British Ports and British Railways Board, unreported, 22nd November 2000 (CA); Jebson v Ministry of Defence [2000] 1 W.L.R. 2055; Jolley v Sutton London Borough Council [2000] 1 W.L.R. 1082; Robert Addie & Sons (Colleries) Ltd. v Dumbreck [1929] A.C. 358; Herrington v British Railways Board [1972] A.C. 877; Hughes v Lord Advocate [1963] AC 837; Smith v Leech Brain and Co Ltd [1962] 2 QB 405; Vancouver-Fraser Park District v Olmstead (1974) 51 DLR 3d 416.

Legislations

Occupiers’ Liability Act 1984: s.1

Representations

W.T.S. Braithwaite QC & G. Martin QC (instructed by Paul Ross & Co.) for the Appellant
R. D. Machell, QC (instructed by James Chapman & Co.) for the Respondent


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