CASE REPORT
John Tomlinson was 18 when he broke his neck diving into the lake at Brereton Heath Park, near Congleton in Cheshire. He brought a claim against the owners and occupiers, Congleton Borough Council, and against the managers of the site, Cheshire County Council. His case came on for trial in March 2001 before Mr Justice Jack, only a week after Darby v National Trust was reported in The Times. What bad luck for the Claimant! The judge dismissed his claim, effectively relying on Darby, bolstered up by Ratcliff v McConnell [1999] 1 W.L.R. 670. We appealed, arguing that, although a superficial reading of Darby seemed to prevent the Claimant from recovering, that was not a correct analysis of the true legal position under the Occupiers Liability Act. We won, by two to one in the Court of Appeal. This decision may be of fundamental importance, because it might stop the tide turning further against people who are injured catastrophically by doing things which can be categorised as "foolish" or "rash".
The accident happened in a lake which had been a sand quarry, 40 feet deep at its deepest. It is an extremely popular venue, being managed as a tourist attraction for up to 160,000 visitors a year. There were signs prohibiting swimming because of dangerous water, but they had little or no effect. A scheme had been developed to landscape and plant the sandy shores with reeds and shrubs, in order to prevent people from swimming, but the modest cost of doing that was too much for the local authority.His case was brought under the Occupiers Liability Act 1984, because the signs prohibiting swimming were thought to mean that he became a trespasser from the moment he started to dive. The trial judge held that there was nothing about the lake which made it any more dangerous than any other ordinary stretch of open water in England (this arising from Darby), and that the danger and risk of injury from diving in the lake where it was shallow were obvious. He said that, on the basis of Darby, "that is really the end of the matter", because an occupier is not under a duty to warn against a risk which is obvious, and that the signs were reasonable and sufficient steps to give warning of the danger and to discourage people from incurring the risk (even though they were acknowledged to be ineffective).
We argued that the duty was to do what was practicable to prevent the occurrence of accidents, not merely to warn people that they might occur.Lord Justice Ward, giving the leading judgment, said that it is essential to use the Occupiers Liability Act as a template for judgment in each and every case. Interestingly, he said: "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.". That is precisely what we were arguing for, and it is important to consider all diving cases in that manner.
The first stage under section 1(1) is to identify the risk and the danger.
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
eg Weil's disease.
The next stage is to determine whether or not a duty was owed by the occupier,
which depends solely on whether the three criteria of section 1(3) are satisfied.
The first is whether the occupier was aware of the danger. In our case that
was beyond question, because there was a history of problems going back to 1983,
when there was a memo "The risk of a fatality to swimmers was stressed and agreed
by all.". Ten years later: "The site has a history of near drownings.". The
second criterion is whether the occupier knows or has reasonable grounds to
believe that the other person is in the vicinity of the danger, which could
not be in dispute. The third, crucial, criterion 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. Lord Justice Ward emphasised
that the question is not whether reasonable protection is to be expected, because
to frame the question that way fails 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". It is important to note the phrase in section 1(3)(c) "in all
the circumstances of the case", because it highlights Lord Steyn's observation
in Jolley that these cases are "inevitably very fact-sensitive".
Returning to Mr Tomlinson's case, the lake was a magnet to the public, and the
sandy beaches were an invitation to swim. When account is taken of the gravity
of the risk of injury, and the failure of the warning signs to curtail the activity,
it was held that the occupiers were under a duty to the Claimant. Once that
has been established, it is then necessary to consider the duty owed to the
individual claimant, as distinct from the claimant as a member of a class. The
history of the danger and of the exposure to it drove the local authority to
the conclusion that warnings were not working; they were inviting public use
of this amenity knowing that the water was a siren call strong enough to turn
stout men's minds. Therefore the signs prohibiting swimming were not enough
to discharge the duty (see section 1(5)). The Court of Appeal held that the
occupiers were under a duty to the claimant to carry out the landscaping and
planting which had been recommended in internal minutes of the local authority,
and that they were in breach of duty in failing to do so.
The Court of Appeal rejected the argument that the Claimant had voluntarily
accepted the risk.
It may be worth noting for the future that Lord Justice Ward expressed a reservation
whether the signs saying "No swimming - dangerous water" turned an otherwise
lawful visitor into a trespasser.
The trial judge had made a finding that, if he was wrong about primary liability,
he would have apportioned blame two thirds against the Claimant. I considered
that to be quite wrong, based on his fundamentally mistaken view of the law
and the real duty owed by the occupiers. Lord Justice Ward agreed with me, saying
that he would have held that they were equally to blame, but that, as the other
two members of the court agreed with the trial judge, he would not disagree.
14 March 2002