House of Lords Reviews Duty of Occupiers

In this bulletin we consider the recent decision of the House of Lords in Tomlinson v Congleton Borough Council [2003] All ER 554 in relation to occupiers liability.

The Facts

In 1995 the Claimant, an 18-year-old male, suffered severe injuries after running out into a lake in a country park owned by the Defendant council and executing a dive in such a way that he broke his neck rendering him tetraplegic.

The lake had been created by flooding an old sand quarry, and had beach like banks that attracted many people, including families with children, during hot weather. Whilst there were allocated places around the lake for windsurfing and canoeing there was a no swimming policy. In addition to handing out leaflets to park visitors explaining the dangers, there were also signs both at the entrance to the park, and around the lake saying "Dangerous Water. No Swimming". However, these were largely ignored and the efforts of park Rangers to try and get people out of the water appear to have been futile.

Following 3 cases of near drowning in the summer of 1992, the Council commenced investigations into the various ways to dissuade people from using the lake to swim in. It was not however, until 1995 after a further investigation which concluded "we have an average 3 or 4 near drownings every year and it is only a matter of time before someone dies" that the budget to carry out measures proposed in 1992 was allocated. The work was about to commence when the accident happened.

The Allegation

The Claimant sought to recover damages under the Occupiers Liability Acts of 1957 and 1984 by alleging that the Defendant had breached its duty of care by failing to ensure that their premises were in such a state as to be reasonably safe, because despite knowing that people were swimming in the lake the Council had not given adequate warning of the risks of doing so, or taken sufficient steps to prevent or discourage it.

The Law/Issues

(i) The Occupiers Liability Act 1957

The Occupiers Liability Act 1957 sets out the duty of care to be imposed upon an occupier in respect of lawful visitors. The Claimant conceded that upon entering the water he became a trespasser because there were notices specifically stating that there should be no swimming. As a consequence of this, the questions as to whether or not a duty arose and whether the Council had discharged it fell to be assessed under the 1984 Act.

(ii) The Duty of Care under the 1984 Act

Under the 1984 Act...