Tomlinson v. Congleton Borough Council & Ors [2003] UKHL 47

House of Lords

Case No SESSION 2002-03

Between

TomlinsonAppellant

Congleton Borough Council & OrsRespondent

Before

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hutton

Lord Hobhouse of Woodborough

Lord Scott of Foscote

Date 31 July 2003

LORD NICHOLLS OF BIRKENHEAD

[1]My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, with which I agree, I would allow this appeal. LORD HOFFMANN My Lords, The accident

[2]In rural south-east Cheshire the early May Bank Holiday week-end in 1995 was unseasonably hot. John Tomlinson, aged 18, had to work until midday on Saturday 6 May but then met some of his friends and drove them to Brereton Heath Country Park, between Holmes Chapel and Congleton. The Park covers about 80 acres. In about 1980 Congleton Borough Council acquired the land, surrounding what was then a derelict sand quarry, and laid it out as a country park. Paths now run through woods of silver birch and in summer bright yellow brimstone butterflies flutter in grassy meadows. But the attraction of the Park for John Tomlinson and his young friends was a 14 acre lake which had been created by flooding the old sand quarry. The 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. A beach at the far end of the lake from the car park was where in fine weather groups of teenagers like John Tomlinson would regularly hang out. He had been going there since he was a child.

[3]After sitting in the hot sun for a couple of hours, John Tomlinson decided that he wanted to cool off. So he ran out into the water and dived. He had done the same thing many times before. But this time the dive was badly executed because he struck his head hard on the sandy bottom. So hard that he broke his neck at the fifth vertebra. He is now a tetraplegic and unable to walk.

[4]It is a terrible tragedy to suffer such dreadful injury in consequence of a relatively minor act of carelessness. It came nowhere near the stupidity of Luke Ratcliff, a student who climbed a fence at 2.30 am on a December morning to take a running dive into the shallow end of a swimming pool (see Ratcliff v McConnell

[1999] 1 WLR 670

) or John Donoghue, who dived into Folkestone Harbour from a slipway at midnight on 27 December after an evening in the pub ( Donoghue v Folkestone Properties Ltd

[2003] 2 WLR 1138

). John Tomlinson's mind must often recur to that hot day which irretrievably changed his life. He may feel, not unreasonably, that fate has dealt with him unfairly. And so in these proceedings he seeks financial compensation: for the loss of his earning capacity, for the expense of the care he will need, for the loss of the ability to lead an ordinary life. But the law does not provide such compensation simply on the basis that the injury was disproportionately severe in relation to one's own fault or even not one's own fault at all. Perhaps it should, but society might not be able to afford to compensate everyone on that principle, certainly at the level at which such compensation is now paid. The law provides compensation only when the injury was someone else's fault. In order to succeed in his claim, that is what Mr Tomlinson has to prove. Occupiers' liability

[5]In these proceedings Mr Tomlinson sues the Congleton Borough Council and the Cheshire County Council, claiming that as occupiers of the Park they were in breach of their duties under the Occupiers' Liability Acts 1957 and 1984. If one had to decide which of the two councils was the occupier, it might not be easy. Although the Park belongs to the Borough Council, it is managed on their behalf by the Countryside Management Service of the County Council. The Borough Council provides the funds to enable the Countryside Management Service to maintain the Park. It is the County which employs the Rangers who look after it. But the two Councils very sensibly agreed that one or other or both was the occupier. Unless it is necessary to distinguish between the County Council and the Borough Council for the purpose of telling the story, I shall call them both the Council. Visitor or trespasser?

[6]The 1957 Act was passed to amend and codify the common law duties of occupiers to certain persons who came upon their land. The common law had distinguished between invitees, in whose visit the occupier had some material interest, and licensees, who came simply by express or implied permission. Different duties were owed to each class. The Act, on the recommendation of the Law Reform Committee (Third Report: Occupiers' Liability to Invitees, Licensees and Trespassers , Cmd. 9305 (1954)), amalgamated (without redefining) the two common law categories, designated the combined class "visitors" (section 1(2)) and provided that (subject to contrary agreement) all visitors should be owed a "common duty of care". That duty is set out in section 2(2), as refined by subsections 2(3) to (5):

"2 (2) The common duty of care is a duty 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. (3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases— ( a ) an occupier must be prepared for children to be less careful than adults; and ( b ) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so. (4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)— ( a ) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and ( b ) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done. (5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (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)."

[7]At first Mr Tomlinson claimed that the Council was in breach of its common duty of care under section 2(2). His complaint was that the premises were not reasonably safe because diving into the water was dangerous and the Council had not given adequate warning of this fact or taken sufficient steps to prevent or discourage him from doing it. But then a difficulty emerged. The County Council, as manager of the Park, had for many years pursued a policy of prohibiting swimming or the use of inflatable dinghies or mattresses. Canoeing and windsurfing were allowed in one area of the lake and angling in another. But not swimming; except, I suppose, by capsized canoeists or windsurfers. Notices had been erected at the entrance and elsewhere saying "Dangerous Water. No Swimming". The policy had not been altogether effective because many people, particularly rowdy teenagers, ignored the notices. They were sometimes rude to the Rangers who tried to get them out of the water. Nevertheless, it was hard to say that swimming or diving was, in the language of section 2(2), one of the purposes "for which [Mr Tomlinson was] invited or permitted by the occupier to be there". The Council went further and said that once he entered the lake to swim, he was no longer a "visitor" at all. He became a trespasser, to whom no duty under the 1957 Act is owed. The Council cited a famous bon mot of Scrutton LJ in The Calgarth [1927] P. 93, 110:

"When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters"

. This quip was used by Lord Atkin in Hillen v ICI (Alkali) Ltd

[1936] AC 65

, 69 to explain why stevedores who were lawfully on a barge for the purpose of discharging it nevertheless became trespassers when they went onto an inadequately supported hatch cover in order to unload some of the cargo. They knew, said Lord Atkin (at pp. 69-70) that they ought not to use the covered hatch for this purpose; "for them for such a purpose it was out of bounds; they were trespassers". So the stevedores could not complain that the barge owners should have warned them that the hatch cover was not adequately supported. Similarly, says the Council, Mr Tomlinson became a trespasser and took himself outside the 1957 Act when he entered the water to swim.

[8]Mr Tomlinson's advisers, having reflected on the matter, decided to concede that he was indeed a trespasser when he went into the water. Although that took him outside the 1957 Act, it did not necessarily mean that the Council owed him no duty. At common law the only duty to trespassers was not to cause them deliberate or reckless injury, but after an inconclusive attempt by the House of Lords to modify this rule in British Railways Board v Herrington

[1972] AC 877

, the Law Commission recommended the creation of a statutory duty to trespassers: see its Report on Liability for Damage or Injury to Trespassers and Related Questions of Occupiers' Liability (1976) Cmnd. 6428. The recommendation was given effect by the Occupiers' Liability Act 1984. Section 1(1) describes the purpose of the Act:

"1. (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."

[9]The circumstances in which a duty may arise are then defined in sub-section (3) and the content of the duty is described in subsections (4) to (6):

"(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) above 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 he 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)."

[10]Mr Tomlinson says that the conditions set out in sub-section (3) were satisfied. The Council was therefore under a duty under subsection (4) to take reasonable care to see that he did not suffer injury by reason of the danger from diving. Subsection (5) shows that although in appropriate circumstances it may be sufficient to warn or discourage, the notices in the present case had been patently ineffectual and therefore it was necessary to take more drastic measures to prevent people like himself from going into the water. Such measures, as I shall later recount in detail, had already been considered by the Council.

[11]The case has therefore proceeded upon a concession that the relevant duty, if any, is that to a trespasser under section 1(4) of the 1984 Act and not to a lawful visitor under section 2(2) of the 1957 Act. On one analysis, this is a rather odd hypothesis. Mr Tomlinson's complaint is that he should have been prevented or discouraged from going into the water, that is to say, from turning himself into a trespasser. Logically, it can be said, that duty must have been owed to him (if at all) while he was still a lawful visitor. Once he had become a trespasser, it could not have meaningful effect. In the Court of Appeal, Longmore LJ was puzzled by this paradox:

"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."

[12]In the later case of Donoghue v Folkestone Properties Ltd

[2003] 2 WLR 1138

, 1150 Lord Phillips of Worth Matravers MR said that he shared these reservations about the concession:

"What was at issue in the case was whether the Council should have taken steps which would have prevented Mr Tomlinson from entering the lake, that is, whether a duty of care was owed to him before he did the unauthorised act."

[13]As a matter of logic, I see the force of these observations. But I have nevertheless come to the conclusion that the concession was rightly made. The duty under the 1984 Act was intended to be a lesser duty, as to both incidence and scope, than the duty to a lawful visitor under the 1957 Act. That was because Parliament recognised that it would often be unduly burdensome to require landowners to take steps to protect the safety of people who came upon their land without invitation or permission. They should not ordinarily be able to force duties upon unwilling hosts. In the application of that principle, I can see no difference between a person who comes upon land without permission and one who, having come with permission, does something which he has not been given permission to do. In both cases, the entrant would be imposing upon the landowner a duty of care which he has not expressly or impliedly accepted. The 1984 Act provides that even in such cases a duty may exist, based simply upon occupation of land and knowledge or foresight that unauthorised persons may come upon the land or authorised persons may use it for unauthorised purposes. But that duty is rarer and different in quality from the duty which arises from express or implied invitation or permission to come upon the land and use it.

[14]In addition, I think that the concession is supported by the high authority of Lord Atkin in Hillen v ICI (Alkali) Ltd

[1936] AC 65

. There too, it could be said that the stevedores' complaint was that they should have been warned not to go upon the hatch cover and that logically this duty was owed to them, if at all, when they were lawfully on the barge.

[15]I would certainly agree with Longmore LJ that the incidence and content of the duty should not depend on the precise moment at which Mr Tomlinson crossed the line between the status of lawful visitor and that of trespasser. But there is no dispute that the act in respect of which Mr Tomlinson says that he was owed a duty, namely, diving into the water, was to his knowledge prohibited by the terms upon which he had been admitted to the Park. It is, I think, for this reason that the Council owed him no duty under the 1957 Act and that the incidence and content of any duty they may have owed was governed by the 1984 Act. But I shall later return to the question of whether it would have made any difference if swimming had not been prohibited and the 1957 Act had applied.

[16]It is therefore necessary to consider the conditions which section 1(3) of the 1984 Act requires to be satisfied in order that any duty under section 1(4) should exist. But before looking at the statutory requirements, I must say something more about the history of the lake, upon which Mr Braithwaite QC, who appeared for Mr Tomlinson, placed great reliance in support of his submission that the Council owed him a duty with which it failed to comply. The history of the lake

[17]The working of the sand quarry ceased in about 1975 and for some years thereafter the land lay derelict. People went there for barbecues, camp fires, open air parties and swimming. The Borough Council bought the land in 1980 and most of the work of landscaping and planting was finished by 1983. The land was reclaimed for municipal recreation. But the traditions established in the previous anarchic state of nature were hard to eradicate. From the beginning, the County Council's Management Plan treated swimming as an "unacceptable water activity". The minutes of the County Council's Advisory Group of interested organisations (anglers, windsurfers and so forth) record that on 21 November 1983 the managers proposed to put up more signs to dissuade swimmers:

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

. The windsurfers in particular were concerned about swimmers getting in their way; perhaps being injured by a fast-moving board. The chairman summed up by saying that although the lake with its sandy beaches was a great attraction to visitors, it was also a management problem because of misuse and dangerous activities on the water.

[18]In the following year, 1984, the management reported that larger notice boards had prevented the swimming problem from getting any worse:

"Every reasonable precaution had now been taken, but it was recognised that some foolhardy persons would continue to put their lives at risk."

[19]The management report for 1988 stated that a major concern was? "the unauthorised use of the lake and the increasing possibility of an accident; this is swimming and the use of rubber boats. Warnings are ignored by large numbers who see Brereton as easy, free access to open water. On busy days the overwhelming numbers make it impossible to control this use 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."

[20]In 1990 there was an inspection by Mr Victor Tyler-Jones, the County Council's Water Safety Officer. He reported that the swimming problem continued, due to the ease of access, the grassy lakeside picnic areas and the beaches and the long history of swimming in the lake. His recommendation was to reduce the beach areas by planting them with reeds. His guidelines for the entire county said that swimming in lakes, rivers and ponds should be discouraged:

"We do not recommend swimming as a suitable activity for any of our managed sites. Potential swimmers could be dissuaded by noticeboard reference to less pleasant features e.g. soft muddy bottom, danger of contracting Weil's Disease, presence of blue-green algae."

If this did not have the desired effect, ballast should be dumped on beaches and banks to make them muddy and unattractive and reeds and shrubs should be planted.

[21]The money to implement these recommendations had to be provided by the Borough Council, which was under some financial pressure. But impetus was provided in the summer of 1992 by a number of incidents. Over Whitsuntide there were three cases of "near drowning resulting in hospital visits". The only such incident of which more details are available concerned a man who "was swimming in lake, after drinking, and got into difficulty". He was rescued by a relative, resuscitated by an off-duty paramedic and taken to hospital. Two men cut their heads by hitting them on something when diving into the lake; there is no information about where they dived. Mr Kitching, the County Council's Countryside Manager, prepared a paper for the Borough Council at the end of the first week in June. He said that the Park had become very popular:

"The total number of visitors now exceeds 160,000 per annum...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...Advice has been sought from the County Council's Water Safety Officer as to how the problem should be addressed and this has been carefully followed. Notices are posted warning of the dangers and leaflets are handed to visitors to emphasise the situation. Life belts and throwing lines are provided for use in emergencies. In spite of these actions the public continue to ignore the advice and the requests of the rangers not to swim. The attitude is that they will do what they want to do and that rangers should not interfere with their enjoyment. There have been several occasions when small children have been out in the middle of the lake and their parents have been extremely rude to staff when approached about this. As a result of the general flaunting of the policy 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."

[22]In July 1992 the Borough Council's Leisure Officer visited the Park and concluded that the notices and leaflets were not having the desired effect. On 23 July 1992 he proposed to other officers the preparation of a report to the Borough Council recommending the adoption of Mr Tyler-Jones's scheme for making the beaches less hospitable to visitors:

"I want 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. I personally find this course of action a regrettable one but I have to remind myself that Council policy was to establish a Country Park and not specifically to provide a swimming facility, no matter how popular this may have become in consequence. 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 water's edge activities despite the cautionary note that is struck by deterrent notices etc., and in that type of situation accidents become inevitable. 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...Work should be prepared for the report with a view to implementation of a scheme at the earliest opportunity, bearing in mind that we shall require a supplementary estimate for the exercise."

[23]As a result of this proposal, the Borough Leisure Officer was asked to prepare a feasibility report with costings. £5,000 was provided in the draft estimates for the Borough's Amenities and Leisure Services Committee, but it was one of many items deleted at the Committee's meeting on 1 March 1993 to achieve a total saving of £200,000. In 1994, the officers tried again. It was listed as a "desirable" growth bid in the budget (below "essential" and "highly desirable"). But the bid failed. When it came to the 1995 budget round, the officers presented a strongly-worded proposal:

"Cheshire Countryside Management Service 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 dinghies whenever the weather is warm and sunny. 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 Safety Water 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."

[24]The Borough Council found this persuasive and in 1995 £5,000 was allocated to the scheme. But the work had not yet begun when Mr Tomlinson had his accident. At that time, the beach to which he and his friends had been accustomed to go since childhood was still there. The diggers, graders and planters arrived to destroy it a few months later. The scope of the duty under the 1984 Act

[25]The conditions in section 1(3) of the 1984 Act determine whether or not a duty is owed to "another" in respect of "any such risk as is referred to in subsection (1)". Two conclusions follow from this language. First, the risks in respect of which the Act imposes a duty are limited to those mentioned in subsection (1)(a) - risks of injury "by reason of any danger due to the state of the premises or to things done or omitted to be done on them." The Act is not concerned with risks due to anything else. Secondly, the conditions have to be satisfied in respect of the claimant as "another"; that is to say, in respect of a class of persons which includes him and a description of risk which includes that which caused his injury. A danger "due to the state of the premises"

[26]The first question, therefore, is whether there was a risk within the scope of the statute; a danger "due to the state of the premises or to things done or omitted to be done on them". The judge found 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". There was nothing special about its configuration; there were no hidden dangers. It was shallow in some places and deep in others, but that is the nature of lakes. Nor was the Council doing or permitting anything to be done which created a danger to persons who came to the lake. No power boats or jet skis threatened the safety of either lawful windsurfers or unlawful swimmers. So the Council submits that there was no danger attributable to the state of premises or things done or omitted on them. In Donoghue v Folkestone Properties Ltd

[2003] 2 WLR 1138

, 1153 Lord Phillips of Worth Matravers MR expressed the same opinion. He said that he had been unable to identify the "state of the premises" which carried with it the risk of the injury suffered by Mr Tomlinson:

"It seems to me that Mr Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous state."

[27]In making this comment, the Master of the Rolls was identifying a point which is in my opinion central to this appeal. It is relevant at a number of points in the analysis of the duties under the 1957 and 1984 Acts. 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 judge's 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.

[28]Mr Braithwaite was inclined to accept the difficulty of establishing that the risk was due to the state of the premises. He therefore contended that it was due to "things done or omitted to be done" on the premises. When asked what these might be, he said that they consisted in the attraction of the lake and the Council's inadequate attempts to keep people out of the water. The Council, he said, were "luring people into a deathtrap". Ward LJ said that the water was "a siren call strong enough to turn stout men's minds". In my opinion this is gross hyperbole. The trouble with the island of the Sirens was not the state of the premises. It was that the Sirens held mariners spellbound until they died of hunger. The beach, give or take a fringe of human bones, was an ordinary Mediterranean beach. If Odysseus had gone ashore and accidentally drowned himself having a swim, Penelope would have had no action against the Sirens for luring him there with their songs. Likewise in this case, the water was perfectly safe for all normal activities. In my opinion "things done or omitted to be done" means activities or the lack of precautions which cause risk, like allowing speedboats among the swimmers. It is a mere circularity to say that a failure to stop people getting into the water was an omission which gave rise to a duty to take steps to stop people from getting into the water.

[29]It follows that in my opinion, there was no risk to Mr Tomlinson due to the state of the premises or anything done or omitted upon the premises. That means that there was no risk of a kind which gave rise to a duty under the 1957 or 1984 Acts. I shall nevertheless go on to consider the matter on the assumption that there was.

(i) Knowledge or foresight of the danger

[30]Section 1(3) has three conditions which must be satisfied. First, under paragraph (a), the occupier must be aware of the danger or have reasonable grounds to believe that it exists. For this purpose, it is necessary to say what the relevant danger was. The judge thought it was the risk of suffering an injury through diving and said that the Council was aware of this danger because two men had suffered minor head injuries from diving in May 1992. In the Court of Appeal, Ward LJ described the relevant risk much more broadly. He regarded all the swimming incidents as indicative of the Council's knowledge that a danger existed. I am inclined to think that this is too wide a description. The risk of injury from diving off the beach was in my opinion different from the risk of drowning in the deep water. For example, the Council might have fenced off the deep water or marked it with buoys and left people to paddle in the shallows. That would have reduced the risk of drowning but would not have prevented the injury to Mr Tomlinson. We know very little about the circumstances in which two men suffered minor cuts to their heads in 1992 and I am not sure that they really provide much support for an inference that there was knowledge, or reasonable grounds to believe, that the beach posed a risk of serious diving injury. Dr Penny, a consultant occupational health and safety physician with long experience of advising organisations involved in acquatic sports (and himself a diver) said that the Code of Safety for Beaches , published in 1993 by the Royal Life Saving Society and the Royal Society for the Prevention of Accidents, made no mention of diving risks, no doubt assuming that, because there was little possibility of high diving from a beach, the risk of serious diving injuries was very small compared with the risk of drowning. I accept that the Council must have known that there was a possibility that some boisterous teenager would injure himself by horseplay in the shallows and I would not disturb the concurrent findings that this was sufficient to satisfy paragraph (a). But the chances of such an accident were small. I shall return later, in connection with condition (c), to the relevance of where the risk comes on the scale of probability. (ii) Knowledge or foresight of the presence of the trespasser

[31]Once it is found that the risk of a swimmer injuring himself by diving was something of which the Council knew or which they had reasonable grounds to believe to exist, paragraph (b) presents no difficulty. The Council plainly knew that swimmers came to the lake and Mr Tomlinson fell within that class. (iii) Reasonable to expect protection

[32]That leaves paragraph (c). Was the risk one against which the Council might reasonably be expected to offer the claimant some protection? The judge found that "the danger and risk of injury from diving in the lake where it was shallow were obvious." In such a case the judge held, both as a matter of common sense and following consistent authority (Staples v West Dorset District Council [1995] PIQR 439 ; Ratcliff v McConnell

[1999] 1 WLR 670

; Darby v National Trust [2001] PIQR 372), that there was no duty to warn against the danger. A warning would not tell a swimmer anything he did not already know. Nor was it necessary to do anything else. "I do not think", said the judge, "that the defendants' legal duty to the claimant in the circumstances required them to take the extreme measures which were completed after the accident". Even if Mr Tomlinson had been owed a duty under the 1957 Act as a lawful visitor, the Council would not have been obliged to do more than they did.

[33]The Court of Appeal disagreed. Ward LJ said that the Council was obliged to do something more. The gravity of the risk, the number of people who regularly incurred it and the attractiveness of the beach created a duty. The prohibition on swimming was obviously ineffectual and therefore it was necessary to take additional steps to prevent or discourage people from getting into the water. Sedley LJ said:

"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."

Longmore LJ dissented. The majority reduced the damages by two-thirds to reflect Mr Tomlinson's contributory negligence, although Ward LJ said that he would have been inclined to reduce them only by half. The Council appeals against the finding of liability and Mr Tomlinson appeals against the apportionment, which he says should have been in accordance with the view of Ward LJ. The balance of risk, gravity of injury, cost and social value.

[34]My Lords,

[34]the majority of the Court of Appeal appear to have proceeded on the basis that if there was a foreseeable risk of serious injury, the Council was under a duty to do what was necessary to prevent it. But this in my opinion is an oversimplification. Even in the case of the duty owed to a lawful visitor under section 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than the acts of Mr Tomlinson, the question of what amounts to "such care as in all the circumstances of the case is reasonable" depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other.

[35]For example, in Overseas Tankship (UK) Ltd v Miller Steamship Pty Ltd (The Wagon Mound (No. 2))

[1967] 1 AC 617

, there was no social value or cost saving in the defendant's activity. Lord Reid said (at p 643):

"In the present case there was no justification whatever for discharging the oil into Sydney Harbour. Not only was it an offence to do so, but it involved considerable loss financially. If the ship's engineer had thought about the matter, there could have been no question of balancing the advantages and disadvantages. From every point of view it was both his duty and his interest to stop the discharge immediately."

[36]So the defendants were held liable for damage which was only a very remote possibility. Similarly in Jolley v Sutton London B.C.

[2000] 1 WLR 1082

there was no social value or cost saving to the Council in creating a risk by leaving a derelict boat lying about. It was something which they ought to have removed whether it created a risk of injury or not. So they were held liable for an injury which, though foreseeable, was not particularly likely. On the other hand, in The Wagon Mound (No. 2) Lord Reid (at p. 642) drew a contrast with Bolton v Stone

[1951] AC 850

in which the House of Lords held that it was not negligent for a cricket club to do nothing about the risk of someone being injured by a cricket ball hit out of the ground. The difference was that the cricket club were carrying on a lawful and socially useful activity and would have had to stop playing cricket at that ground.

[37]This is the kind of balance which has to be struck even in a situation in which it is clearly fair, just and reasonable that there should in principle be a duty of care or in which Parliament, as in the 1957 Act, has decreed that there should be. And it may lead to the conclusion that even though injury is foreseeable, as it was in Bolton v Stone , it is still in all the circumstances reasonable to do nothing about it. The 1957 and 1984 Acts contrasted

[38]In the case of the 1984 Act, there is the additional consideration that unless in all the circumstances it is reasonable to expect the occupier to do something, that is to say, to "offer the other some protection", there is no duty at all. One may ask what difference there is between the case in which the claimant is a lawful visitor and there is in principle a duty under the 1957 Act but on the particular facts no duty to do anything, and the case in which he is a trespasser and there is on the particular facts no duty under the 1984 Act. Of course in such a case the result is the same. But Parliament has made it clear that in the case of a lawful visitor, one starts from the assumption that there is a duty whereas in the case of a trespasser one starts from the assumption that there is none. The balance under the 1957 Act

[39]My Lords,

[39]it will in the circumstances be convenient to consider first the question of what the position would have been if Mr Tomlinson had been a lawful visitor owed a duty under section 2(2) of the 1957 Act. Assume, therefore, that there had been no prohibition on swimming. What was the risk of serious injury? To some extent this depends upon what one regards as the relevant risk. As I have mentioned, the judge thought it was the risk of injury through diving while the Court of Appeal thought it was any kind of injury which could happen to people in the water. Although, as I have said, I am inclined to agree with the judge, I do not want to put the basis of my decision too narrowly. So I accept that we are concerned with the steps, if any, which should have been taken to prevent any kind of water accident. According to the Royal Society for the Prevention of Accidents, about 450 people drown while swimming in the United Kingdom every year (see Darby v National Trust [2001] PIQR 372, 374). About 25-35 break their necks diving and no doubt others sustain less serious injuries. So there is obviously some degree of risk in swimming and diving, as there is in climbing, cycling, fell walking and many other such activities.

[40]I turn then to the cost of taking preventative measures. Ward LJ described it (£5,000) as "not excessive". Perhaps it was not, although the outlay has to be seen in the context of the other items (rated "essential" and "highly desirable") in the Borough Council budget which had taken precedence over the destruction of the beaches for the previous two years.

[41]I do not however regard the financial cost as a significant item in the balancing exercise which the court has to undertake. There are two other related considerations which are far more important. The first is the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming. And the second is the question of whether the Council should be entitled to allow people of full capacity to decide for themselves whether to take the risk.

[42]The Court of Appeal made no reference at all to the social value of the activities which were to be prohibited. The majority of people who went to the beaches to sunbathe, paddle and play with their children were enjoying themselves in a way which gave them pleasure and caused no risk to themselves or anyone else. This must be something to be taken into account in deciding whether it was reasonable to expect the Council to destroy the beaches.

[43]I have the impression that the Court of Appeal felt able to brush these matters aside because the Council had already decided to do the work. But they were held liable for having failed to do so before Mr Tomlinson's accident and the question is therefore whether they were under a legal duty to do so. Ward LJ placed much emphasis upon the fact that the Council had decided to destroy the beaches and that its officers thought that this was necessary to avoid being held liable for an accident to a swimmer. But the fact that the Council's safety officers thought that the work was necessary does not show that there was a legal duty to do it. In Darby v National Trust [2001] PIQR 372 the claimant's husband was tragically drowned while swimming in a pond on the National Trust estate at Hardwick Hall. Miss Rebecca Kirkwood, the Water and Leisure Safety Consultant to the Royal Society for the Prevention of Accidents, gave uncontradicted evidence, which the judge accepted, that the pond was unsuitable for swimming because it was deep in the middle and the edges were uneven. The National Trust should have made it clear that swimming in the pond was not allowed and taken steps to enforce the prohibition. But May LJ said robustly that it was for the court, not Miss Kirkwood, to decide whether the Trust was under a legal duty to take such steps. There was no duty because the risks from swimming in the pond were perfectly obvious. Free will

[44]The second consideration, namely the question of whether people should accept responsibility for the risks they choose to run, is the point made by Lord Phillips of Worth Matravers MR in Donoghue v Folkestone Properties Ltd

[2003] 2 WLR 1138

, 1153 and which I said was central to this appeal. Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk. By contrast, Miss Bessie Stone, to whom the House of Lords held that no duty was owed, was innocently standing on the pavement outside her garden gate at 10 Beckenham Road, Cheetham when she was struck by a ball hit for 6 out of the Cheetham Cricket Club ground. She was certainly not engaging in any activity which involved an inherent risk of such injury. So compared with Bolton v Stone , this is an a fortiori case.

[45]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 hang 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 may be think that they are a danger or inconvenience to himself or others. Or he may take a paternalist 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.

[46]My Lords,

[46]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 irresponsible 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. I find it difficult to express with appropriate moderation my disagreement with the proposition of Sedley LJ (at para. 45) that 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". A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, or in the case of employees, or some lack of capacity, such as the inability of children to recognise danger ( British Railways Board v Herrington

[1972] AC 877

) or the despair of prisoners which may lead them to inflict injury on themselves ( Reeves v Commissioner of Police

[2000] 1 AC 360

[47]It is of course understandable that organisations like the Royal Society for the Prevention of Accidents should favour policies which require people to be prevented from taking risks. Their function is to prevent accidents and that is one way of doing so. But they do not have to consider the cost, not only in money but also in deprivation of liberty, which such restrictions entail. 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 individual 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.

[48]As for the Council officers, they were obvious motivated by the view that it was necessary to take defensive measures to prevent the Council from being held liable to pay compensation. The Borough Leisure Officer said that he regretted the need to destroy the beaches but saw no alternative if the Council was not to be held liable for an accident to a swimmer. 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. On the other hand, if the decision of the Court of Appeal were left standing, every such occupier would feel obliged to take similar defensive measures. Sedley LJ was able to say that if the logic of the Court of Appeal's decision was that other public lakes and ponds required similar precautions, "so be it". But I cannot view this prospect with the same equanimity. In my opinion it would damage the quality of many people's lives.

[49]In the particular case of diving injuries, there is little evidence that such defensive measures have had much effect. Dr Penny, the Council's expert, said that over the past decade there had been little change in the rate of serious diving accidents. Each year, as I have mentioned, there are about 25-35 fracture-dislocations of the neck. Almost all those affected are males and their average age is consistently around 25 years. In spite of greatly increased safety measures, particularly in swimming pools, the numbers (when Dr Penny gave evidence) had remained the same for a decade:

"This is probably because of the sudden, unpredictable nature of these dangerous dives, undertaken mostly by boisterous young men...hence the common description the "

Macho Male Diving Syndrome."

[50]My Lords,

[50]for these reasons I consider that even if swimming had not been prohibited and the Council had owed a duty under section 2(2) of the 1957, that duty would not have required them to take any steps to prevent Mr Tomlinson from diving or warning him against dangers which were perfectly obvious. If that is the case, then plainly there can have been no duty under the 1984 Act. The risk was not one against which he was entitled under section 1(3)(c) to protection. I would therefore allow the appeal and restore the decision of Jack J. It follows that the cross-appeal against the apportionment of damages must be dismissed. LORD HUTTON My Lords,

[51]I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann and I gratefully adopt his account of the background facts to the tragic injury which Mr Tomlinson suffered in the lake in Brereton Heath Country Park in Cheshire. I agree with your Lordships that the appeal brought by Congleton Borough Council and Cheshire County Council should be allowed, but as I was attracted for a considerable time during the hearing of the appeal by the respondent's argument supporting the reasoning of Ward LJ in the Court of Appeal (with which Sedley LJ agreed) that Mr Tomlinson was entitled to recover damages, I wish to add some observations of my own.

[52]I approach the case on the basis that Mr Tomlinson was, in strict law, a trespasser at the time he dived and struck his head on the bottom of the lake. It is clear that he was invited by the appellants to come to the country park but it is also clear that swimming in the lake was expressly prohibited by the appellants and, as the trial judge found, Mr Tomlinson was fully aware of this prohibition. Therefore when he began to dive he became a trespasser because, as Lord Atkin stated in Hillen and Pettigrew v ICI (Alkali) Ltd

[1936] AC 65

, 69:

"So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly."

However I agree with Lord Hoffmann that even if the respondent had not been a trespasser at the time of his dive but had been a visitor within the meaning of the Occupiers' Liability Act 1957, he would still not have been entitled to recover damages.

[53]In relation to section 1(1)(a) of the Occupiers' Liability Act 1984 I recognise that there is force in the argument that the injury was not due to the state of the premises but was due to the respondent's own lack of care in diving into shallow water. But the trial judge found that Mr Tomlinson could not see the bottom of the lake and, on balance, I incline to the view that dark and murky water which prevents a person seeing the bottom of the lake where he is diving can be viewed as "the state of the premises" and that if he sustains injury through striking his head on the bottom which he cannot see this can be viewed as a danger "due to the state of the premises". If water were allowed to become dark and murky in an indoor swimming pool provided by a local authority and a diver struck his head on the bottom I consider that the danger could be regarded as "due to the state of the premises", and whilst there is an obvious difference between such water and water in a lake which in its natural state is dark and murky, I think that the term "the state of the premises" can be applied both to the swimming pool and to the lake.

[54]Section 1(3) and (4) provide:

"(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) above 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."

[55]There is no doubt from the reports and proposals of the appellants' officials to the Borough's Amenities and Leisure Services Committee and to the Borough Council which Lord Hoffmann has described that paragraphs (a) and (b) of section 1(3) are satisfied. If section 1(3) were satisfied and the risk was one against which, in all the circumstances of the case, the appellants might reasonably be expected to offer the respondent some protection, I consider that there would be an argument of some force that they were in breach of the duty specified in section 1(4), because the minutes of the meetings showed that they knew that there were dangers to persons swimming or diving in the lake (there had been two cases of swimmers sustaining head injuries) and they knew that the dangers might lead to death or serious injury, but they had decided not to take the recommended steps such as planting reeds on the beach, which would probably have stopped swimming, because of financial constraints, although the cost of these precautionary measures would have been only in the region of £15,000.

[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:

"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 rangers' 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."

[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:

"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. The situation of a town on the banks of a river is a familiar feature; and whether the stream be sluggish like the Clyde at Glasgow, or swift and variable like the Ness at Inverness, or the Tay at Perth, there is always danger to the individual who may be so unfortunate as to fall into the stream. But in none of these places has it been found necessary to fence the river to prevent children or careless persons from falling into the water. Now, as the common law is just the formal statement of the results and conclusions of the common sense of mankind, I come without difficulty to the conclusion that precautions which have been rejected by common sense as unnecessary and inconvenient are not required by the law."

[58]In Glasgow Corporation v Taylor

[1922] 1 AC 44

, 61 Lord Shaw of Dunfermline stated:

"Grounds thrown open by a municipality to the public may contain objects of natural beauty, say precipitous cliffs or the banks of streams, the dangers of the resort to which are plain."

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

[1997] 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:

"In my judgment, 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 the diving is safe ie. 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 (see Lord Shaw in Glasgow Corporation v Taylor [1922] 1 AC 44 , 60. There was no trap here on the judge's finding. There was just an uneven surface, as one would expect to find in a disused gravel pit."

[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:

"So far as the Act is concerned, by section 1(3) the defendants were under a duty to those whom they had reasonable grounds to believe would be in the vicinity of the danger, that is on the cliff for the purpose of diving, and the risk was one which, in all the circumstances, [they] may be reasonably expected to offer some protection. In my judgment the danger here was so obvious to any adult that it was not reasonably to be expected of the defendants that they would offer any protection."

[63]In Darby v National Trust [2001] 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:

"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. That, in my view, applies as much to the risk that a swimmer might get into difficulties from the temperature of the water as to the risk that he might get into difficulties from mud or sludge on the bottom of the pond."

[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

[2003] 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:

"33 The obvious situation where a duty under the 1984 Act is likely to arise is where the occupier knows that a trespasser may come upon a danger that is latent. In such a case the trespasser may be exposed to the risk of injury without realising that the danger exists. Where the state of the premises constitutes a danger that is perfectly obvious, and there is no reason for a trespasser observing it to go near it, a duty under the 1984 Act is unlikely to arise for at least two reasons. The first is that because the danger can readily be avoided, it is unlikely to pose a risk of injuring the trespasser whose presence on the premises is envisaged. 34 There are, however, circumstances in which it may be foreseeable that a trespasser will appreciate that a dangerous feature of premises poses a risk of injury, but will nevertheless deliberately court the danger and risk the injury. It seems to me that, at least where the individual is an adult, it will be rare that those circumstances will be such that the occupier can reasonably be expected to offer some protection to the trespasser against the risk."

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 My Lords,

[66]In this case the trial judge after having heard all the evidence made findings of fact which are now accepted by the claimant: There was nothing about the mere which made it any more dangerous than any other stretch of open water in England. Swimming and diving held their own risks. So if the mere was to be described as a danger, it was only because it attracted swimming and diving, which activities carry a risk. Despite having seen signs stating "Dangerous Water: No Swimming", the claimant ignored them. The danger and risk of injury from diving in the lake where it was shallow was obvious. At the time of the accident, the claimant was 18 years of age and had regularly been going to the park since he was a small child. He knew it well. The accident occurred when he waded into the water until the water was a little above his knees and threw himself forward in a dive or plunge. He knew that he shouldn't. He could not see the bottom. In fact it was a smooth sandy surface without any obstruction or hazard. He dived deeper than he had intended and his head hit the sandy bottom causing his injury. Besides the notices already referred to, visitors were handed leaflets warning them of the dangers of swimming in the mere. Wardens patrolled the park and told people further that they should not swim in the mere. However it was the fact that visitors often took no notice and very many people did bathe in the mere in summer.

[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

[1932] 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 [2003] 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 [1995] PIQR 439 , Whyte v Redland

(1997) EWCA Civ 2842

, Ratcliffe v McConnell

[1999] 1 WLR 670

, Darby v National Trust [2001] 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 " Probably as a result of the larger notice boards the problems of swimming were no worse than in previous years and perhaps marginally better. Every reasonable precaution had now been taken, but it was recognised that some foolhardy persons would continue to put their lives at risk.", 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.

[80]The third point is that this confusion leads to the erroneous conclusion that there was a significant risk of injury presented to the claimant when he went into the shallow water on the day in question. One cannot say that there was no risk of injury because we know now what happened. But, in my view, it was objectively so small a risk as not to trigger s.1(1) of the 1984 Act, otherwise every injury would suffice because it must imply the existence of some risk. However, and probably more importantly, the degree of risk is central to the assessment of what reasonably should be expected of the occupier and what would be a reasonable response to the existence of that degree of risk. The response should be appropriate and proportionate to both the degree of risk and the seriousness of the outcome at risk. If the risk of serious injury is so slight and remote that it is highly unlikely ever to materialise, it may well be that it is not reasonable to expect the occupier to take any steps to protect anyone against it. The law does not require disproportionate or unreasonable responses.

[81]The fourth point, one to which I know that your Lordships attach importance, is the fact that 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 some youths may climb them and fall? Does the law require the coast line and other beauty spots to be lined with warning notices? Does the law require that attractive water side 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. But this is the road down which your Lordships, like other courts before, have been invited to travel and which the councils in the present case found so inviting. 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. The discussion of social utility in the Illinois Supreme Court is to the same effect: Bucheleres v Chicago Park District 171 Ill 2d 435, at 457-8.

[82]I cannot leave this case without expressing my complete agreement with the reasoning of the judgment of Lord Phillips, the Master of the Rolls, in Donoghue v Folkestone Properties

[2003] 2 WLR 1138

[83]For these reasons and those given by my noble and learned friend Lord Hoffmann, and in agreement with the judgment of Longmore LJ, I too would allow this appeal. LORD SCOTT OF FOSCOTE My Lords,

[84]I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hoffmann. Subject to one reservation I am in complete agreement with the reasons he gives for allowing this appeal. But I find myself in such fundamental disagreement with the approach to this case by the majority in the Court of Appeal that I want to add, also, a few comments of my own.

[85]My reservation is that the Act which must be applied to the facts of this case in order to decide whether the Council is under any liability to Mr Tomlinson is, in my opinion, the Occupiers' Liability Act 1957, not the 1984 Act.

[86]The 1957 Act regulates the duty of care which an occupier of premises owes to visitors to the premises (section 1(1)). "Visitors" are persons who would, at common law, be invitees or licensees (section 1(2)). The 1984 Act, on the other hand, applies to persons on the premises who are not visitors but are trespassers. It lays down the criteria for deciding whether the occupier of the premises owes any duty of care at all to the trespasser in question in relation to the type of injury he has suffered (section 1(3)). If a duty of care is owed, the Act describes the duty (section 1(4)).

[87]Mr Tomlinson's case against the Council is based on an alleged breach of the duty of care they owed him. There is no doubt at all that he was a visitor at the Park. The Park was open to the public and he was entitled to be there. Wearing the shoes of a visitor, he was owed the duty of care prescribed by the 1957 Act.

[88]The notices prominently displayed at various places in the Park forbade swimming in the lake. But entry into the water was not forbidden. Visitors to the Park were entitled to paddle and splash in the shallows of the lake. Many did so, particularly children. They were entitled to run into the water and splash one another. They were entitled to lie in the shallows and let the cool water lap over them. In doing these things they were visitors and were owed the 1957 Act duty of care. All they were forbidden to do was to swim. If they had started swimming, using the lake for a purpose which was forbidden, they would have lost their status as visitors and become trespassers. The 1984 Act would then have applied.

[89]Mr Tomlinson did not suffer his tragic accident while swimming in the lake. He ran into the water and, when the depth of the water was at mid thigh level, executed the disastrous "dive" and suffered the accident. At no stage did he swim. It may be that his "dive" was preparatory to swimming. But swimming in water not much above knee level, say 2 feet 6 inches deep, is difficult. There might be some element of flotation but I do not think the activity would normally justify the use of the verb "swim". In any event, Mr Tomlinson's injury was not caused while he was swimming and cannot be attributed in any way to the dangers of swimming. His complaint against the Council is that the Council did not take reasonable care to discourage him while in the shallows of the lake from executing a "dive". If the "dive" was, which I regard as doubtful for the reasons given, a preliminary to an attempt to swim, the complaint may be regarded as a complaint that the Council failed to prevent him from becoming a trespasser. But this must necessarily, in my view, have been a duty owed to him while he was a visitor.

[90]An analogous situation might arise in relation to the trees in the Park. Suppose there were notices forbidding the climbing of trees. Nonetheless a visitor to the Park climbs a tree, falls from it, injures himself and sues the Council. He would have been a trespasser vis-à-vis the tree. But a claim under the 1984 Act would be hopeless. The proposition that the Council owed him a duty to make the tree easier or safer to climb would be ridiculous. But the injured climber might contend that the presence of the tree posed an enticing, exciting and irresistible challenge to those visitors to the Park who, like himself, were addicted to the adrenalin surge caused by climbing high trees and that, consequently, the Council owed a duty to make it impossible for him, and others like him, to succumb to the temptation, to prevent him from becoming a trespasser vis-à-vis the tree. This duty, if it were owed at all, would be a duty owed to him, a visitor, under the 1957 Act. The contention would, of course, be rejected. The Council's 1957 Act duty of care to its visitors would not require the trees to be cut down or the trunks and lower branches to be festooned with barbed wire in order to prevent visitors to the Park from disobeying the notices and turning themselves into trespassers by climbing the trees. For present purposes, however, the point I want to make is that the climber's contention would engage the 1957 Act, not the 1984 Act.

[91]In the present case it seems to me unreal to regard Mr Tomlinson's injury as having been caused while he was a trespasser. His complaint, rejected by the trial judge but accepted by the majority in the Court of Appeal, was that the Council ought to have taken effective steps to discourage entry by visitors into the waters of the lake. The notices were held to be inadequate discouragement. But, if there was this duty, it was a duty owed to visitors. The people who read the notices, or who could have read them but failed to do so, would have been visitors. These were the people to be discouraged. The alleged duty was a 1957 Act duty.

[92]The Council's duty under the 1957 Act to its visitors was a duty "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 …. to be there" (section 2(2)). The purpose for which visitors were invited or permitted to be in the Park was general recreation. This included paddling and playing about in the water. The proposition that in order to discharge their 1957 Act duty to visitors the Council had to discourage them from any entry into the water and, in effect, to prevent the paddling and playing about that so many had for so long enjoyed is, in my opinion, for the reasons so cogently expressed by Lord Hoffmann, wholly unacceptable. There was no breach by the Council of its 1957 Act duty. The question whether it owed any 1984 Act duty did not, in my opinion, arise. If, wrongly in my opinion, the 1984 Act were to be regarded as applicable, the case would be a fortiori.

[93]There are two respects, in my opinion, in which the approach of the courts below to the facts of this case have been somewhat unreal. First, the action of Mr Tomlinson that brought about his tragic injury has been described as a "dive". I think it is misdescribed. A dive into water, as normally understood, involves a hands-arms-head-first movement from a standpoint above the water down into the water. A dive is dangerous if the depth of the water is unknown for the obvious reason that if the depth is inadequate the head may strike the bottom of the pool or the lake before the diver is able to check his downwards trajectory and curve out of the dive. There had, apparently, been two previous occasions over the past five years or so on which a person diving into the lake had suffered head injuries. The evidence did not disclose the details but it seems reasonable to assume that these occasions had involved dives properly so-called. Mr Tomlinson did not execute a dive in the ordinary sense. He ran into the lake and, when he thought he was far enough in to do so, he threw himself forward. His forward plunge may, for want of a better word, be called a "dive" but it should not be confused with the normal and usual dive. Mr Tomlinson was not diving from a standpoint above the lake down into water of uncertain depth. His feet were on the bottom of the lake immediately before he executed his forward plunge. He knew how deep the water was when he began the plunge. He must have expected the downward shelving of the bottom of the lake to continue and there is no evidence that it did not. The accident happened because the trajectory of his forward plunge was not sufficiently shallow. This was not a diving accident in the ordinary sense and there was no evidence that an accident caused in the manner in which Mr Tomlinson's was caused had ever previously occurred at the lake.

[94]Second, much was made of the trial judge's finding that the dangers of diving or swimming in the lake were obvious, at least to adults. No one has contested that finding of fact. But I think its importance has been overstated. Mr Tomlinson was not diving in the normal sense, nor was he swimming. He simply ran into the water and when he could not run any further, because the water was above his knees and the galloping action that we all adopt when running into water on a shelving beach had become too difficult, he plunged forward. This is something that happens on every beach in every country in the world, temperature and conditions permitting. Mr Tomlinson would not have stopped to think about the dangers of swimming or diving in the lake. He was not taking a pre-meditated risk. It would not have occurred to him, if he had thought about it, that he was taking a risk at all. He was a high spirited young man enjoying himself with his friends in a pleasant Park with a pleasant water facility. If he had set out to swim across the lake, it might have been relevant to speak of his taking an obvious risk. If he had climbed a tree with branches overhanging the lake and had dived from a branch into the water he would have been courting an obvious danger. But he was not doing any such thing. He was simply sporting about in the water with his friends, giving free rein to his exuberance. And why not? And why should the Council be discouraged by the law of tort from providing facilities for young men and young women to enjoy themselves in this way? Of course 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. This appeal must be allowed.

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