April 2025 Case Summary: Tomlinson -v- Congleton Borough Council [2003]
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Citation: Tomlinson -v- Congleton Borough Council [2003]
UKHL 47
Court: House of Lords
Date: Thursday 31st
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.
April 2025 Case Summary: Tomlinson -v- Congleton Borough Council [2003]
Citation: Tomlinson -v- Congleton Borough Council [2003] UKHL 47
Court: House of Lords
Date: Thursday 31st 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
[1] Occupiers’ Liability Act 1984 section 1
[2] [2002] EWCA Civ 309, [2003] 2 W.L.R. 1120
[3] Occupiers' Liability Act of 1957
[4] Occupiers' Liability Act of 1984
[5] The Calgarth [1927] P. 93, 110
[6] Occupiers' Liability Acts of 1957
[7] British Railways Board v Herrington [1972] AC 877
[8] Occupiers' Liability Act of 1984
[9] Subsection 3 of the Occupiers' Liability Act of 1984
[10] Subsection 4 and 5 of the Occupiers' Liability Act of 1984
[11] Occupiers' Liability Act of 1957
[12] Occupiers' Liability Act of 1984
[13] Occupiers' Liability Act of 1957
[14] Court of Appeal (Civil Division) - [2002] EWCA Civ 309