Tomlinson v Congleton Borough Council [2004]

Facts

The claimant, aged 18, dived from a standing position in a lake in a country park owned and occupied by the defendant local authority. His head hit the bottom of the lake and he broke his neck. The defendants had placed signs prohibiting swimming around the lake. They also instructed rangers to prevent people swimming. The claimant brought an action against the defendants under the Occupiers' Liability Act 1984 alleging that they had breached their duty of care to him under that statute.

Decision

The House of Lords unanimously allowed an appeal by the defendants and rejected the claim. In determining the duty of occupiers, the common law has been replaced by two statutes. The Occupiers' Liability Act 1957 governs the duties that an occupier owes to their visitors and the Occupiers' Liability Act 1984 governs the duties owed to non-visitors. Only Lord Scott believed that the 1957 Act applied to these facts. Although he rejected the claim, he maintained that the claimant was not 'swimming' at the time the accident occurred (as he was diving) and so had not exceeded his permission. Accordingly, he should be regarded as a visitor rather than a trespasser.

For the rest of their Lordships, he was a non-visitor and so the 1984 Act had to be considered. In order to be engaged, the Act requires (s 1(1)):

• The defendant must be an occupier.
• The claimant must be a non-visitor.
• There must be a danger due to the state of the premises or things done or omitted to be done on them.

If the Act is engaged, section 1(3) states that an occupier will owe a non-visitor a duty of care if:

(a) He is aware of the danger or has reasonable grounds to believe that it exists;

(b) Knows or has reasonable grounds to believe that the…