When visiting a public lake provides social benefit, and when the risk is obvious mean that the council is not liable
What happened?
Congleton Borough Council owned Brereton Heath Country Park. It had previously been a sand quarry and they transformed it in to a country park and opened it up for public use. They had created a lake on the park which was surrounded by sandy banks. In the hot weather many visitors came to the park.
Swimming was not permitted in the lake and notices were posted at the entrance saying “Dangerous water. No swimming”. However despite this, many people swam. Rangers were employed and on occasions sought to prevent swimming but some of the visitors would be rude to the rangers’ attempts to prevent them and many continued.
Mr Tomlinson was injured when he dived into shallow water and broke his neck. He made a claim against the council.
Legal Outcome
The Court of Appeal held that the council were liable but reduced the damages by 2/3 under the Law Reform (Contributory Negligence) Act 1945. The council appealed the finding on liability and the claimant appealed against the reduction.
The appeal went to the House of Lords, who found the council were not liable.
No risk arose from the state of the premises, the risk arose from the claimant’s own action. He was a person of full capacity who voluntarily and without pressure or inducement engaged in an activity which had an inherent risk. Even if there was a risk from the state of the premises, the risk was not one against which the council would reasonably be expected to offer the claimant some protection.
In reaching this conclusion Lord Hoffman was of the opinion that there was no duty to warn or take steps to prevent the claimant from diving as the dangers were perfectly obvious. This was based on the principle of free will and that to hold otherwise would deny the social benefit to the majority of the users of the park from using the park and lakes in a safe and responsible manner. To impose liability in this situation would mean closing of many such venues up and down the country for fear of litigation.
What can we learn from what happened?
This is a very, very famous case. There is no need here for the names to be left anonymous – Tomlinson v Congleton Borough Council is a landmark case that is referred to on a regular basis and has set a legal precedent when it comes to managing the risks associated with public spaces.
The comments by judge in the House of Lords really sums it up perfectly – the risks were obvious and to find the council liable in this case would have negative repercussions regarding access to countryside which has great social benefit.
A lot of organisations are fearful of litigation and take a risk-averse approach. Yes, risk has to be managed, but this case should reassure people that litigation is a process and the outcome is very often nothing to be worried about.
Source of Information
E-Law Resources