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Citation: Tomlinson -v- Congleton Borough Council [2003] UKHL 47

Court: House of Lords

Date: Thursday 31^st July 2003

Procedural History:

[2002] EWCA Civ 309 (unreported)

[2003] UKHL 47

[2004] 1 AC 46

Judges:

Lord Nicholls of Birkenhead

Lord Hoffman

Lord Hutton

Lord Hobhouse of Woodborough

Lord Scott of Foscote

 

Legal Issues: Tort of negligence, and the duty of care in relation to the Occupiers’ Liability Act 1984 section 1[1], and an appeal against a decision in County Court in 2002[2] that as owner and occupier of a county park, Congleton Borough Council and Chesire County Council were liable (minus a deduction in respect of contributory negligence) for the serious injuries sustained by T following him diving into shallow water of a lake that had signage of no swimming.

 

Concurring opinions: Lord Nicholls of Birkenhead, Lord Hoffman, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote

 

Dissenting opinion: None.

 

Facts:

Congleton Borough Council acquired about 80 acres of land in 1980. Within that land was a disused quarry, which was subsequently flooded as part the creation of a new county park. The 14-acre lake had sandy banks provided beaches that were used by the general public for recreation, including sand play, sunbathing and paddling.

On the first May Bank Holiday weekend in 1995, Mr John Tomlinson (then aged 18 years old) dived into the water at Brereton Heath Country Park, an activity he had done many times before. However, on this occasion, John hit his head off the sandy bottom, resulting in a break in his neck at the fifth vertebra that left him tetraplegic and unable to walk.

Mr Tomlinson sued Congleton Borough Council and the Chesire County Council for financial compensation for the loss of his earning capacity, for the expense of his long-term care, and for the loss of the ability to lead an ordinary life, and must prove that Congleton Borough Council and the Chesire County Council, as occupiers of the Park, were in breach of their duties under the Occupiers' Liability Acts of 1957[3] and 1984[4].

The park belongs to Congleton Borough Council, who provide the funds for it to be managed by the Rangers of Countryside Management Service. The Rangers are employed by Cheshire County Council.

Both Councils did agree that either one, or both, were the occupier of the Park, and disputed that they had a duty of care as under section 2 subsection 2 of the Occupiers' Liability Acts of 1957, Mr Tomlinson was not a visitor but a trespasser once he entered the water. Supported by common law case The Calgarth[5] and a infamous quote of Scrutton LJ: “When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters.”

However, despite the agreed trespasser act by Mr Tomlinson taking him outside the confines of the Occupiers' Liability Acts of 1957[6], it did not mean that the Congleton Borough Council and Chesire County Council owed him no duty of care, due to the Law Commission’s recommendation on the creation of a statutory duty to trespassers, following the House of Lords attempt to modify this rule in the case of British Railways Board v Herrington[7].

The Law Commission’s recommendation became law upon the ascending of the Occupiers' Liability Act of 1984[8].

Mr Tomlinson’s legal representatives put it to the House of Lords, that the conditions in subsection 3 had been met:

(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.

Subsection 3 of the Occupiers' Liability Act of 1984[9]

They further submitted that Congleton Borough Council and the Chesire County Council were under a duty under subsection 4, and that they should have taken a more proactive approach given the signage was habitually ignored by the general public under subsection 5.

(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.

Subsection 4 and 5 of the Occupiers' Liability Act of 1984[10]

Decision:

Lord Nicholls of Birkenhead: for the reasons given by Lord Hoffman, the appeal is allowed.

Lord Hoffman: Mr Tomlinson was an adult with full capacity who undertook a course of action which had an inherent risk. Congleton Borough Council and the Chesire County Council did not have a duty to do more than they did in preventing Mr Tomlinson from diving or warning against dangers which were perfectly obvious. The appeal is allowed.

Lord Hutton: agrees with Lord Hoffman in allowing the appeal, and noted that the respondent hitting his head off the sandy bottom was not something the appellants could have offered him any protection from.

Lord Hobhouse of Woodborough: agrees with Lord Hoffman in allowing the appeal. He agreed with Lord Hoffman and Lord Hutton on a number of points, but added in that it should not be up to the law to protect the foolhardy or reckless few who interfere with the enjoyment obtained by the remainder of society, of the amenities and liberties afforded to them.

Lord Scott of Foscote: agrees with Lord Hoffman on all points but one. Lord Scott states that the act upon which Congleton Borough Council and the Chesire County Council are under liability, is the Occupiers' Liability Act of 1957[11], not Occupiers' Liability Act of 1984[12], as it is the 1957 Act [13]which regulates the duty of care which an occupier owes to visitors.

What happened next?

The decision to allow the appeal for Congleton Borough Council and the Chesire County Council, reversed the decision of the Court of Appeal[14] case of the previous year.

Even if Congleton Borough Council and the Chesire County Council had owed a duty of care to Mr Tomlinson, it would not have required either Council to take additional steps in preventing him from diving into shallow water, or warn him further from the dangers of doing so.

 

Case law links:

Westlaw (account required)

https://uk.westlaw.com/Document/ID68C3AB1E42811DA8FC2A0F0355337E9/View/FullText.html?originationContext=document&transitionType=SearchItem&ppcid=915138a7e26341a781b77a1cb18b11b4&contextData=(sc.Search)&navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0a93bd0c0000019659ee99707fb1915d&listSource=Search&listPageSource=0f101aaab22e2115b5bbd50c4c4828e7&list=UK-CASES&rank=1&comp=wluk

 

LexusNexus (account required)

https://plus.lexis.com/uk/cases-uk/tomlinson-v-congleton-borough-council-and-ano_7/?crid=4e9dcecb-c311-4e4a-b722-6ea29393521f&pddocumentnumber=1

 

Bailii

https://www.bailii.org/uk/cases/UKHL/2003/47.html

 

Life can get busy, which is has been, and has resulted in my being behind on my case summary posts as February was an enjoyably busy month of my own making, but now I am catching up on my case summaries.

I came across a mention of this case whilst at work, and realised that this would be a good case to do a summary for once the basics of it had been explained to me.

Citation: Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333 (EWCA)

Court: Court of Appeal Civil Division

Date: 4^th and 5^th June 1975

Procedural History: Decree of divorce in 1974.

Judges: Cairns LJ, Scarman LJ and Sir Gordon Willmer

Legal Issues: An appeal on the issue of Costs from the wife, following an order made by Heilbron J.

Concurring opinions: Cairns LJ, Scarman LJ and Sir Gordon Willmer

Dissenting opinion: None

Facts:

Mr and Mrs Calderbank had been married for 17 years and had 3 children when Mrs Calderbank left the matrimonial home with the children and filed for divorce.

The main issue revolved around the division of the matrimonial assets, which had primarily been added to by Mrs Calderbank, which included her £80,000 inheritance from her parents, and various properties that included a property of £12,000 which Mr Calderbank’s parents rented, and the main matrimonial home valued at £16,000.

For fiscal reasons, the matrimonial home had been registered under Mr Calderbank’s name, and he continued to live there after the divorce.

The original Family Court judgment, held by Heilbron J, awarded Mr Calderbank £10,000 out of the sale of the main matrimonial home. Mrs Calderbank appealed on the issue of costs and put to the court that Mr Calderbank should not be entitled to legal costs because he had rejected her reasonable pre-settlement offer.

Decision:

The court, being held by Cairns LJ, Scarman LJ and Sir Gordon Willmer, was unanimous in their decision.

If a party has refused a reasonable offer and then goes on to win but for less than what the reasonable offer was, then the losing part can use that offer as evidence when it comes to determining the matter of costs.

Mr Calderbank had refused Mrs Calderbank’s settlement offer of the £12,000 property that was being rented by his parents, before being awarded £10,000 from the sale of the £16,000 matrimonial home.

Due to this award being less than the settlement offer, the burden of paying the legal costs after 14 days of the £12,000 property offer, shifted to Mr Calderbank. Those initial 14 days had to be covered by Mrs Calderbank.

What happened next?

This eestablished the principal of the “Calderbank offer” and is commonly seen in litigation with the words “without prejudice, save as to costs."

This means that whilst litigation is still in progress, any Calderbank offer cannot be referred to in court.

However, upon settlement, if the damages awarded to the winning party are less than the settlement offer, then when both sides are negotiating costs, the losing party has the right to bring this settlement offer to the court’s attention, as it shows that a reasonable attempt to settle has been made, and the additional costs that have been incurred by the losing party, are a result of the winning side not agreeing sooner rather than later.

NOTE: a Calderbank offer is different from a Part 36 offer. 

A Calderbank offer remains between the two parties and allows various terms to be put forward. Once accepted, it is legally binding, but if costs issues remain unresolved and require court intervention, this is when the offer can be referred to.

A Part 36 offer is more rigid, and is designed to bring an end to litigation, because of the severe penalty regarding costs, especially if the award of damages does not significantly blow the original offer out of the water.

A £1 difference is not enough, a ballpark difference is not enough. It must be a chasm of a difference.

It can be used up to the beginning of trial, and even when proceedings have not been issued. It must be in writing, and there are specific things it must state. Additionally, any previously rejected Part 36 offer that has not withdrawn, can still be accepted months later.

In my November blog post, I wrote about how I would use my Open University blog for case summaries.

And as promised, my first case summary is below. 

However, before I do that, I want to explain where I first came across this case, and why I knew it would be the first one I wrote about.

Before I began studying with the Open University, I completed a Level 3 Paralegal diploma with the National Association of Licensed Paralegals.

That was my way of testing myself, after the idea of Law was put to me by a colleague.

However, I was floundering a little and finding judgments hard to understand.

That all changed when I read the judgment for Miller v Jackson (citation and reference within case summary), and the first paragraph had me laughing out loud.

This was the first judgment that made me feel that I was capable of understanding law.

Reading a judgment is a skill I am still working on, as is writing a case summary as it turns out.

I am not sure if I have the correct structure and format, so this will be ongoing. Any guidance and tips will be appreciated.

Thank you.

CASE SUMMARY

Citation: Miller v Jackson [1977] QB 966.^[1]

Court: Court of Appeal, Civil division

 

Date: 6^th April 1977

 

Procedural History: Court of First Instance: High Court of Justice Queen’s Bench division Durham District Registry.

Heard by Mr Justice Reeve.

 

Judges:

The Master of the Rolls Lord Denning

Lord Justice Geoffrey Lane

Lord Justice Cumming-Bruce

 

Legal Issues:

The torts of negligence and nuisance.

The right of the cricket club to continue using their grounds which it has for many years before the housing development, verses the right of Mr and Mrs Miller to enjoy their private space without fear of injury and damage.

 

Concurring opinion on the legal issues: Lord Justice Geoffrey Lane, Lord Justice Cumming-Bruce

Dissenting opinion: Lord Denning

 

Concurring opinion on the remedy: Lord Denning, Lord Justice Cumming-Bruce

Dissenting opinion: Lord Justice Geoffrey Lane

 

 

Facts:

The plaintiffs were Mr and Mrs Miller.

The defendants, represented by the club chairman Mr Jackson, were Lintz Cricket Club.

The cricket club had been playing cricket on its grounds for 70 years, before neighbouring land owned by the National Coal Board was sold to a property developer.

One of the new builds that was built on the boundary with the cricket club – 98 feet from where it was played – was purchased by Mr and Mrs Miller.

As a result of the proximity, cricket balls would land in the property of the Millers regularly, and at times caused damaged.

The two sides attempted to find a resolution to the problem.

Lintz Cricket Club took action in attempting to prevent balls from landing in the neighbouring property; they directed members to deliver low balls and installed a 6-foot-high fence with an additional galvanised chain-link fence on top which raised it to 15-foot-high.

The Club offered to pay for all future damage (£400), as well as pay all expenses, install an additional safety net over the neighbour’s garden, and pay for the installation of unbreakable glass in their windows.

However, when balls continued to damage their property, the Millers sued for damaged, and an injunction to stop cricket play on the grounds.

 

Decision:

An argument had been made by Counsel for Mr Jackson that there was a defence against the torts of negligence and nuisance, as Mr and Mrs Miller had “come to the nuisance.”

However, this defence was dismissed due to a previous ruling having established that coming to a nuisance was no defence (Sturges v Bridgman (1879) 11 Ch. D. 852).^[2]

The case of Sturges v Bridgman continues to be a positive judicial consideration.

Lord Justice Geoffrey Lane and Lord Justice Cumming-Bruce were both of the opinion that Mr Jackson and the cricket club were guilty of nuisance every time a cricket ball broke the boundary line, and guilty of negligence due to knowing the risk of potential injury every time a cricket ball came over the fence, and allowing that to continue.

Lord Denning was the dissenting opinion and held that the cricket club had better rights due to having played cricket there for 70 years prior to the housing development. He also made comment on the proximity of the housing development and that the responsibility of this rested with the property developers, not the cricket club.

In relation to the remedy, Lord Denning and Lord Justice Cuming-Bruce agreed that the boundaries between negligence and nuisance were blurred in this instance, and difficult to distinguish separately. It is of their opinion that allowing an injunction would result in the demise of the cricket club.

They did, however, acknowledge that there needs to be a balance between the cricket club and Mr and Mrs Miller, and as such, because of the service to the local community by the cricket club, the offer of paying for the repair of damages by the cricket club was deemed adequate, with the amount awarded to Mr and Mrs Miller, increased to £400 to cover future instances.

Lord Justice Geoffrey Lane (1977a) was the dissenting opinion to the remedy and stated that Mr and Mrs Miller should not have to live with the constant knowledge that they and their property were at risk of injury and/or damage during the summer months and therefore would grant the injunction.

What happened next?

This case did not change the law.

What it did do, was go on to provide more flexibility in relation to the granting or denying of an injunction as a remedy for the torts of negligence and nuisance, rather than an award of damages, which was more typical.

As to the disputing neighbours, not long after the Court of Appeal judgment, Mr and Mrs Miller sold the property and moved to a different area.

 

References:

Lord Justice Geoffrey Lane (1977a) Miller v Jackson [1977] QB 966. Available at the following URLs (Accessed 09/12/2024):

Westlaw (account required)

https://uk.westlaw.com/Document/I2F64677035A411EBA4D0E6EA91C4D33D/View/FullText.html?originationContext=document&transitionType=DocumentItem&ppcid=5171b51266ac4c4990716168174690d9&contextData=(sc.Search)&comp=wluk

LexisLaw (account required)

https://plus.lexis.com/uk/cases-uk/miller-and-another-v-jackson-and-others-1975/?crid=56b3b8a3-3a2b-4b8e-9100-e217997f0de9&pdiskwicview=false

Bailii

http://www.bailii.org/ew/cases/EWCA/Civ/1977/6.html

 

Citations: