The House of Lords has allowed an appeal by Congleton Borough Council and Cheshire County Council against a ruling that they were one-third responsible for an swimming accident that occurred in a lake that they jointly managed. [Click on case name to access the judgment: Tomlinson v Congleton Borough Council]
John Tomlinson, who was 18 at the time of the accident in 1995, was left paralysed from the neck down after breaking his neck diving into a lake in Brereton Heath Park, Congleton.
The Court of Appeal held by a majority ([2002] 12 EG 136 (CS)) that the council had not taken sufficient precaution to ensure that a ban on swimming, which was frequently ignored, was obeyed.
Overturning that decision, Lord Scott stated that, in diving, Tomlinson had not been taking a premeditated risk.
He said that, rather than diving in the normal sense, Tomlinson simply ran into the water and took a plunge when it became too high for him to continue running. The risk would not occur to a young man having fun in such a way.
“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?”
But, he continued, “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.”
Lord Hoffmann added that the water was perfectly safe “for all normal activities” and that the council were under no duty to take any steps to prevent Tomlinson from diving, or to warn him against dangers that were “perfectly obvious”.
“I think there is an important question of freedom at stake,” he said. “The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them,” he said.
Trespass at your peril: a discussion of a similar recent case where the council were also held not liable: Donoghue v Folkestone Properties Ltd
What lies beneath: commentary on the Court of Appeal judgment in Tomlinson v Congleton Borough Council [2002] 12 EG 136 (CS)
References: PLS News 31/7/03
