Still safe to dive in?

Looking back and looking forward 10 years

after Tomlinson v Congleton BC

Luke Bennett
Department of the Natural and Built Environment
Sheffield Hallam University

l.e.bennett@shu.ac.uk

Tomlinson the scenario
John Tomlinson, 18 years old takes a dive one hot bank holiday weekend in 1995. It
is from a standing position into a flooded quarry pit, now a country park. The lake
has irregular depth. Mr Tomlinson is paralysed by his impact with the bed of the
lake.

The park is a popular venue for yachting, sub-aqua and other permitted activities.
But swimming and diving are not permitted.

There were signs stating Dangerous Water: No Swimming

The park is owned and occupied by the borough council but managed by the
county council

The councils have been in discussion regarding a planting scheme to improve
deterrence to known unauthorised water use but the plan has not yet been
implemented

Tomlinson the impact
Tomlinson v Congleton Borough Council (House of Lords
2003) was a landmark case on the principles of occupiers'
liability, its 'pro-risk' ruling stating that:

individuals should take more responsibility for their actions, and
that landowners should not fear adventurous adult recreation upon
their property.

How have courts evolved this interpretation of the liability
principles since 2003?



Tomlinson the themes
Basis of liability (what duty?)

What difference between duty owned to visitors and trespassers?
What is the hazard the thing or the use of the thing?
The implications of imposing liability

The extent of that duty (what standard of care?)

What duty to warn?
What duty to prevent?
What is the significance of failing to do everything possible?

What role for:

Self-responsibility?
Self-evident-ness?

Culture of risk assessment / relationship to other law



http://www.conservancy.co.uk/gallery/15/
Who goes there?
What is the difference between the duty owned to visitors and trespassers?

The tort of negligence
Classic three point test:

Duty of care (is X your neighbour?)
Standard of care (careful enough?)
Causation (your lack of care created the accident?)

Plus consider:
Socially desirable to impose liability?
Accident was foreseeable?
The Occupiers Liability Acts
1957 Act duties owed to lawful visitors (matches the care and duties
required under the common law)

1984 Act extends some protection to trespassers, if:

X is aware of the danger (or should be)

X knows (or should know) of trespassers likely to be in vicinity of the
danger

X the risk is one it is reasonable to expect him to provide protection
against


http://www.conservancy.co.uk/gallery/15/
What is being provided?
The relevance of the occupiers use and provision of the site

Baldacchino v West Wittering Estate Plc [2008] EWHC 3386 (QB)

14 year old child climbed onto navigation beacon, dived into the sea when
tide ebbing.

What extent of control expected of WWEP?:

1km long blue flag beach with life guards employed by WWEP, a pay car park.
11,000 people on the beach that day.

It is self-evident that the defendant was not, for example, a school authority
acting in loco parentis. It did not, as far as I have been told, offer a
childminding service or organise controlled games for children or provide
purpose made playground facilities, such as swings and climbing frames or
anything of that type, at least not in the area that I am concerned with, and
the beach clearly was not a manufactured playground for children. It was a
natural habitat. (Paragraph 6: Stuart Baker J)


Whos in control? And to what extent?
Holiday pool cases:

Evans v- Kosmar Villa Holiday plc [2007] EWCA Civ 1003 holiday
booking terms and responsibility for risk inherent in using the pool

Bourne Leisure Ltd t/a British Holidays v- Marsden [2009] EWCA Civ
671 caravan park & parental responsibility

The indoor climbing case:

Poppleton v- Trustees of the Portsmouth Youth Activities Committee
[2008] EWCA Civ 646 climbing wall injury case - there are inherent
and obvious risks that even a venue does not have a duty to warn
about / train the participant for.

The thing or the use of the thing?

http://upload.wikimedia.org/wikipedia/commons/4/49/Groyne_at_West_Wittering_beach_3_-_geograph.org.uk_-_1411758.jpg

What is the hazard?

Donoghue v- Folkstone Properties Ltd [2003] EWCA Civ 231

Lord Philips MR:

i. "There are some features of land that are not inherently
dangerous but which may tempt a person on the land to indulge in
an activity which carries a risk of injury. Such activities include cliff-
climbing, mountaineering, skiing, and hang-gliding by way of example.
It does not seem to me that a person carrying on such an activity can
ascribe to the 'state of the premises an injury sustained as a result of a
mishap in the course of carrying on the activity -- provided of course
that the mishap is not caused by an unusual or latent feature of the
landscape. I do not consider that the 1984 Act imposes any duty on an
occupier to protect a trespasser from making use of a particular
feature of the premises in order to carry out an activity simply because
that activity carries with it an inherent risk of injury."

Tomlinson
Lord Hoffman:

Mr Tomlinson was a person of full capacity who voluntarily and without any
pressure or inducement engaged in an activity which had inherent risk. The
risk was that he might not execute his dive properly and so sustain
injury. Likewise, a person who goes mountaineering incurs the risk that he
might stumble or misjudge where to put his weight.

In neither case can the risk be attributed to the state of the
premises. Otherwise any premises can be said to be dangerous to someone
who chooses to use them for some dangerous activity.

In the present case, Mr Tomlinson knew the lake well and even if he had not,
the judges finding was that it contained no dangers which one would not have
expected. So the only risk arose out of what he chose to do and not out of the
state of the premises. (paragraph 27)

Tomlinson
Lord Hobhouse:

The state of the premises is the physical features of the premises as they exist
at the relevant time. It can include footpaths covered in ice and open
mineshafts. It will not normally include parts of the landscape, say, steep
slopes or difficult terrain 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 speedboats are allowed to go into an area
where swimmers are, the safety of the swimmers may be endangered.
(paragraph 69)

Baldacchino (2008)
Baker J:

My first conclusion on this is that the risk of injury did not result from any
danger due to the state of the premises or things done or omitted to be done
on them. The risk of injury resulted from jumping at an awkward angle into
water which was too shallow for safety's sake and when the diver did not
check how deep the water was or adjust his diving technique to allow for the
depth of the water.

The state of the premises, so far as is relevant, was that there was an
inanimate, fixed metal object, a sandy floor and seawater which, in the endless
and uncontrollable nature of wave and tide motion, was gradually receding.
The premises were not, in my judgment, inherently dangerous and the
claimant was not diving from a facility from which he could reasonably have
expected that there would be a constantly safe depth of water to dive into.
(paragraph 70)

In my judgment, this beach and this beacon, both individually and collectively,
were not in such a state that they created the risk of danger of injury.
(paragraph 75)


Baldacchino (2008)

one would have to be both fit, agile and determined to scale to the top of
the beacon. It would involve in the first place hauling oneself out of the water
and pulling oneself up to a point where one could stand on the metal bracket
supporting the legs.

It would then be necessary to reach up to the top of the beacon and to clamber
up, which would involve climbing past an overhanging edge of the top section
and all of this would have to be done probably with wet feet and hands.

Whilst it is clear that some people are able to achieve this, it seems to me that
the number who can do it is probably relatively small and the number who
would choose to do it, even if they could, would be even smaller. (Paragraph
9)

[see also this interpretive stratagem in Mann v- Northern Electric
Distribution Ltd [2010] EWCA Civ 141, CA]

Climbing underside of fire
escape case: Keown v
Coventry Healthcare NHS
Trust (2006) 1 WLR 953, CA

http://www.deconsys.co.uk/images/escape4.jpg

http://kerstenbeckphotoart.files.wordpress.com/2010/12/stairway5.jpg
Geary v- J D Wetherspoon
[2011] EWHC 1506

the danger was created by the decision to slide,
not the banister itself

Just because injury is foreseeable this
alone doesnt create a duty for the
owner/occupier to prevent it.

Public Policy
The implications of imposing liability

https://bushbaby.travel/photos/0000/4229/Rocktail_-_children_enjoying_the_beach_-_Marin_Bernadie__Custom__lead.jpg
Tomlinson
Lord Hoffman:

My Lords, as will be clear from what I have just said, I think that there is an
important question of freedom at stake. It is unjust that the harmless
recreation of responsible parents and children with buckets and spades on the
beaches should be prohibited in order to comply with what is thought to be a
legal duty to safeguard responsible visitors against dangers which are perfectly
obvious.

The fact that such people take no notice of warnings cannot create a duty to
take other steps to protect them. ----

So this appeal gives your Lordships the opportunity to say clearly that local
authorities and other occupiers of land are ordinarily under no duty to incur
such social and financial costs to protect a minority (or even a majority)
against obvious dangers. (paragraph 45)

Tomlinson
Lord Hobhouse:

it is not, and should never be the policy of the law to require the protection of
the foolhardy or reckless few to deprive, or interfere with, the enjoyment by
the remainder of society of the liberties and amenities to which they are rightly
entitled.

Does the law require that all trees be cut down because youths may climb
them and fall? Does the law require the coastline and other beauty spots to
be lined with warning notices?

Does the law require that attractive waterside picnic spots be destroyed
because of a few foolhardy individuals who choose to ignore warning notices
and indulge in activities dangerous only to themselves? The answer to all
these questions is, of course, no. (Paragraph 81)


Tomlinson
Lord Hobhouse:

In truth, the arguments for the claimant have involved an attack upon the
liberties of the citizen which should not be countenanced. They attack the liberty
of the individual to engage in dangerous, but otherwise harmless, pastimes at his
own risk and the liberty of citizens as a whole fully to enjoy the variety and quality
of the landscape of this country.

The pursuit of an unrestrained culture of blame and compensation has many evil
consequences and one is certainly the interference with the liberty of the citizen.
(paragraph 81)

Keep Out?
Extent of duties to warn; to prevent

http://www.eastbourneholidays.com/images/fullsize/beachy-head-cliffs-edge.jpg
Tomlinson
1995 bid to fund the waters edge works:

[The County Council] 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 dingies whenever the weather is warm and
sunny. We have on average 3 or 4 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 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.
Tomlinson
Lord Hoffman:

I think it will be extremely rare for an occupier of land to be under a duty to
prevent people from taking risks which are inherent in the activities they
freely choose to undertake upon the land. If people want to climb mountains,
go hand-gliding, or swim or dive in ponds or lakes, that is their affair.

Of course the landowner may for his own reasons wish to prohibit such
activities. He maybe thinks that they are danger or inconvenience to himself
or others. Or he may take a paternalistic view and prefer people not to
undertake risky activities on his land.

He is entitled to impose such conditions, as the council did by prohibiting
swimming. But the law does not require him to do so. (paragraph 45)

Its obvious
The value of selfevidentness
http://fatkidatcamp.com/wp-content/uploads/2009/11/caution-sand.jpg
Tomlinson
Lord Hutton, having referred to a number of long established authorities
went on to say:

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. (paragraph 59)

Staples v- West Dorset DC (1995) 93 LGR 536, CA
The Cobb harbor wall, Lyme Regis
CA: no need for warning signs about algae making the premonitory Slippery
When Wet

Whyte v Redland Aggregates Ltd (unreported) 27 November 1997; Court
of Appeal
CA man paralysed after diving into disused gravel pit. Absence of No
Swimming signs did not give rise to liability. Danger, Keep Out signs were
sufficient.

Darby v- National Trust [2001] EWCA Civ 189
Claimant drowned whilst swimming in a pond. The National Trust was not held
to have been negligent for an absence of No Swimming" signs. Lord Justice
May commented:

"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
coastline would 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."



Stevenson -v- Corporation of Glasgow (1908) SC 1034 - Court of Session

The claimant's infant son had fallen into a river adjacent to parkland and
drowned. The court rejected the claim for compensation. Lord Kinnear
declared:

"a person going upon property, even by invitation, express or implied, is
expected to use reasonable care for his own safety...[there is] no duty
upon the owners of public parks to fence very stream of water or every
pond which may happen to be found in a public garden."

(this 1908 judgment was relied upon by the Court of Session in the case of
Graham -v- East of Scotland Water Authority (2002) SCLR 340 to declare that
no liability arose for failure to have fenced a reservoir).

Its at your own risk
The value of personal responsibility and the social benefit of risk
http://media.smashingmagazine.com/wp-content/uploads/uploader/images/signs/swim-at-own-risk/full_swim-at-own-risk.jpg
Tomlinson
Lord Hoffman:

there is an important question of freedom at stake. It is
unjust that the harmless recreation of responsible parents and
children with buckets and spades on beaches should be
prohibited in order to comply with what is thought to be a
legal duty to safeguard irresponsible visitors against dangers
which are perfectly obvious. (paragraph 46)

A view matched by many policy stakeholders since c2005 in
widespread vilification of a perceived compensation culture
Tomlinson
this appeal gives your lordships the opportunity to say clearly that local
authorities and other occupiers of land are ordinarily under no duty to
incur such social and financial costs to protect a minority (or even a
majority) against obvious dangers (Lord Hoffman para 48)

there is some risk of accidents arising out of the joie-de-vivre of the
young. But that is no reason for imposing a grey and dull safety regime
on everyone. (Lord Scott - para 94)

The House of Lords was very keen to reverse the judgment (and logic) of
the Court of Appeal who had earlier found the Council liable on the basis
that there was a known risk, and there was more that could have been
done to manage it.
Section 1 Compensation Act 2006
Courts now required to consider the deterrent effect that imposing
liability in a compensation claim case may have upon:

Preventing desirable activity from being undertaken; and/or
Discouraging persons from providing such activities

But the legal systems reaction to section 1 has been ambivalent:

Of course, the law of tort must not interfere with activities just because they carry
some risk. Of course, the law of tort must not stamp out socially desirable
activities. But whether the social benefit of an activity is such that the degree of
risk it entails is acceptable is a question of fact, degree and judgment, which must
be decided on an individual basis and not by a broad brush approach. (Janet Smith
LJ at para 49)

The Scout Association v- Mark Adam Barnes [2010] EWCA Civ

Tomlinson
Lord Hoffman asserted that the courts were best suited to balance
technical and social factors

He positioned RoSPA as:

having an organisational mission to favour policies which require people to be
prevented from taking risks

Not having to consider the monetary, social costs and deprivation of liberty that such
prevention might entail

And arguing that

The courts will naturally respect the technical expertise of such organisations in
drawing attention to what can be done to prevent accidents. But the balance between
risk on the one hand and personal autonomy on the other is not a matter of expert
opinion. It is a judgment which the courts must make and which in England reflects the
individualist values of the common law (para 47)

Wider contexts
cultures of risk management
Hindsight and subsequent place management
Julio Ferrari -v- National Trust (2004) NIQB 56 - High Court

Now that this accident has occurred, the defendant is on notice that some of the
basalt columns may collapse if merely stood upon. That, in my opinion, puts an onus
on the National Trust to ensure that regular visual monthly inspections are carried out
at the Giants Gate to detect possible weaknesses in the basalt columns at that
particular location, where a visitor may fall a distance of 4 metres or more, and to take
such remedial steps as in the all the circumstances of the case are reasonable to see that
the many thousands of visitors who continue to visit this remarkable site will be
reasonably safe in so doing.

[But] This does not mean that the Trust has to carry out an inspection of every basalt
column at the Giants Causeway, but merely those at or near the edge of the Giants
Gate. Nor does it mean that the Trust, in the absence of any weaknesses detected at the
monthly visual inspections, has to erect warning notices or barriers at or near the edge
of the Giants Gate to guard against a person going too close to the edge and simply
falling over it, a danger which is self evident. (Sheil LJ para 21)



R (Hampstead Heath Winter Swimming Club) v- The Corporation of London
[2005] 1 WLR 2930, Stanley Burnton J

Yes the Corporation could be said to be exposing swimmers to risk in letting them winter
swim in the pond, but

Risk is inherent in life, and some risk is unavoidable

The key issue was:

If an adult swimmer is given permission to swim unsupervised in a pond that has no
hidden dangers, and the swimmer decides to swim in it, the risks he incurs in doing so
are in a sense the result of both the permission and his decision

But to reflect the Tomlinson principle of freedom of action and avoidance of excessive
prevention

if an adult swimmer with knowledge of the risks chooses to swim unsupervised, the
risks he incurs are as a result of his decision and not of the permission given to him to
swim. (para 64)

But what is the relevance of Tomlinson for Health & Safety Law?
http://www.flickr.com/photos/martin-james/2520900408/sizes/z/in/photostream/
Conclusion
managing the future