Occupiers' Liability Act 1984 - trespasser - lake - respondent injured when diving into lake - swimming prohibited - whether danger result of state of premises - whether appellant occupiers breaching duty of care - appeal allowed

Tomlinson v Congleton Borough Council and others: HL (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hutton, Lord Hobhouse of Woodborough and Lord Scott of Foscote): 31 July 2003

The appellant council managed a public park that contained a lake.

There were large 'No Swimming' signs at the entrance to the park and elsewhere.

However, these had proved ineffective in preventing the public from swimming, and, over the years, accidents had occurred.

The respondent was severely injured after diving into the lake.

He brought a damages claim against the council, contending that they were in breach of their duty under the Occupiers' Liability Act 1984, in respect of dangers arising 'due to the state of the premises or things done or omitted to be done on them'.

He argued that by erecting the signs, the council had not fulfilled their duty to him under section 1(3) and (4) of the Act, because they had been aware that the signs did not stop the public from regularly swimming in the lake.

At first instance, the judge found that there was no danger 'due to the state of the premises', because there was nothing special about the lake that made it more dangerous than any other ordinary stretch of open water.

He held that no duty arose, a decision overturned by the Court of Appeal, which held that a duty had arisen and had been breached: see [2002] EWCA Civ 309; [2003] 2 WLR 1120.

The council appealed.

Raymond Machell QC and Peter Burns (instructed by James Chapman & Co, Manchester) for the appellants; William Braithwaite QC and Gerard Martin QC (instructed by Paul Ross & Co, Manchester) for the respondent.

Held: The appeal was allowed.

The only risk, within the scope of the Act, arose out of what the respondent had chosen to do, not from the state of the premises.

He was a person of full capacity who had voluntarily, and without any pressure or inducement, engaged in an inherently risky activity.

That risk could not be attributed to the state of the premises.

Otherwise, any premises could be said to be dangerous to someone who chose to use them for some dangerous activity: Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231; 2 WLR 1138, applied.

Accordingly, there was no risk of a kind that gave rise to a duty under the 1984 Act.

The requirements of section 1(3)(c) were not met because the risk was not one against which, in all the circumstances, the council could reasonably be expected to offer some protection.

It was contrary to common sense to require an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake: Stevenson v Glasgow Corporation (1908) SC 1034; Whyte v Redland Aggregates Ltd, unreported 27 November 1997 and Darby v National Trust for Places of Historic Interest or Natural Beauty [2001] EWCA Civ 189; (2001) 3 LGLR 29, considered.