Tomlinson (FC) (Original Respondent and Cross-appellant) v. Congleton Borough Council and others (Original Appellants and Cross-respondents)
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  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
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.