Tomlinson (FC) (Original Respondent and Cross-appellant) v. Congleton Borough Council and others (Original Appellants and Cross-respondents)
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  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:
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.
The conditions for the existence of a duty
(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  PIQR 439; Ratcliff v McConnell  1 WLR 670; Darby v National Trust  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, 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))  1 AC 617 , there was no social value or cost saving in the defendant's activity. Lord Reid said (at p 643):
36. So the defendants were held liable for damage which was only a very remote possibility. Similarly in Jolley v Sutton London B.C.  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  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, 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  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  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.
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  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, 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, as in the case of employees, or some lack of capacity, such as the inability of children to recognise danger (British Railways Board v Herrington  AC 877) or the despair of prisoners which may lead them to inflict injury on themselves (Reeves v Commissioner of Police  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:
50. My Lords, 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.
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  AC 65, 69:
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:
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.