S (a child), Re

Facts

Brereton Heath Country Park in Cheshire was run by the council and included a lake formed from former sand workings, with a sandy beach. The council displayed signs saying that the water was dangerous and forbidding swimming, but the signs were ignored, and many people swam and played on the beach. Tomlinson, aged eighteen, ran into the water and dived, striking his head on the sandy bottom and breaking his neck, which left him tetraplegic. The council had considered making the lake less attractive for swimming but had not yet done so. He sued under the Occupiers' Liability Acts 1957 and 1984.

History

The trial judge dismissed the claim. The Court of Appeal allowed the claimant's appeal, holding that the council was in breach but reducing damages by two-thirds for contributory negligence. The House of Lords allowed the council's appeal.

Issue

Whether the council owed the claimant a duty under the Occupiers' Liability Acts to prevent him from diving into the lake, or to take steps to stop swimming; and whether the risk that he ran was a risk arising from the state of the premises.

Held

Appeal allowed and the claim dismissed. Whichever Act applied, the council was not liable, because the danger came from the claimant's own decision to dive in shallow water and not from any dangerous state of the premises. A duty to prevent adults from taking such voluntary risks was not one the law should impose, having regard to the cost of precautions and the loss of a popular amenity.

Ratio

• A duty under the Occupiers' Liability Acts arises only in respect of dangers due to the state of the premises or things done or omitted on them; the risk of injury from a voluntary activity that is inherently risky but not due to a defect is not within the duty.
• Even if there is a risk, the court asks whether it is reasonable to impose a duty to take precautions, considering the likelihood and gravity of harm, the cost and effect of precautions on the enjoyment of the land by others, and the value of freedom to engage in a recreational activity.

The judgments

Key reasoning

• The danger was inherent in the activity of diving into water of uncertain depth, and was not caused by a hidden hazard such as a defect in the land; there was nothing unusual about the lake.
• The measures that would have been needed to stop people from swimming, such as removing the beach or enforcing a ban, would have a substantial cost and would deprive the public of benefits.
• It is not the function of the law to protect people of full capacity from the consequences of their own choices when they take risks that they understand, and the court should be wary of treating the occurrence of an accident as evidence of a duty.

Obiter

• Remarks that the law should not be driven by a culture of risk aversion and that the rules on occupiers' liability should reflect a balance between the interests of those who might be injured and those who would lose the use of public places.

Where it fits in the module

In Tort (FHS), on liability to non-visitors, Tomlinson is read with British Railways Board v Herrington [1972] AC 877, Occupiers' Liability Act 1984, Ratcliff v McConnell [1999] 1 WLR 670 and Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39. The questions concern whether the Act's requirement that a danger be due to the state of the premises is a limit on the duty, the role of free will and obvious risks in the law of negligence, and whether the House allowed the principle of personal responsibility to override the statutory scheme. It also shows how the courts handle claims by those whose use of land is not authorised.

Criticisms

• The House used the idea that the danger came from the claimant's activity and not from the state of the land to reach a conclusion that the council was not liable, but the lake and beach were attractive and the council had allowed many people to swim, so the distinction looks like a policy decision presented as a reading of the statute.
• The reasoning emphasises personal responsibility for an eighteen year old who had suffered catastrophic injury, and critics say that this overlooks the council's knowledge that people regularly swam and the failure to act on its own plans to reduce the danger.
• The decision gives little guidance on how much weight is to be given to the benefit of an amenity compared with the risk of serious injury, and invites inconsistent decisions on similar facts.
• The question whether the claimant was a visitor or a non-visitor was not clearly decided, so the case is an uncertain guide to the duty owed to those who are on the land with permission but who engage in a forbidden activity.