Liability to trespasser

Tomlinson v Congleton Borough Council and another H of L TLR 1 August

The House of Lords has overturned the majority decision of the Court of Appeal (21 /LL p70) and unanimously held that a swimmer who suffered serious injury when he dived from a standing position into shallow water in a lake where swimming was prohibited and hit his head on the bottom had no claim under s1 of the Occupiers Liability Act 1984. The council had created a 14-acre lake by flooding a quarry. Its sandy banks provided some attractive beaches and in hot weather many people, including families with children, went there to play in the sand, sunbathe and paddle in the water. The council had for many years pursued a policy of prohibiting swimming in the lake, and notices had been erected saying ‘Dangerous water. No swimming’, although many people ignored them. On a bank holiday weekend the claimant, then aged 18, had gone to the park with some of his friends. After a couple of hours, he had run into the water and dived. He had struck his head hard on the sandy bottom and broken his neck. He was now a tetraplegic and unable to walk. It was a terrible tragedy but the law provided compensation only when the injury was someone else’s fault. About 450 people drown whilst swimming in the UK every year, and 25–35 break their necks diving. So there was obviously some degree of risk in swimming and diving, as there was in climbing, cycling, fell-walking and many other activities. The danger and risk of injury from diving in the lake where it was shallow were obvious. There had been no duty to warn against the danger. A warning would not have told a swimmer anything that he did not already know. The appeal gave their Lordships the opportunity to state clearly that local authorities and other occupiers of land are ordinarily under no duty to incur social and financial costs to protect a minority, or even a majority, against obvious dangers. If the decision of the Court of Appeal were left standing, every such occupier would feel obliged to take similar defensive measures, which would damage the quality of many people’s lives.