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

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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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