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Tomlinson v Congleton Borough Council [2004] 1 AC 46

Occupiers Liability – Occupiers Liability Act 1984 - Liability to Trespassers- Obvious Danger – Duty to Warn of Danger – Implication of Licence – Contributory Negligence

Facts

Congleton Borough Council had attempted to turn a disused quarry into a beauty spot and country park by turning the quarry into an artificial lake.  The council prohibited swimming, recognising the lake to be dangerous for swimmers and had prominent signs prohibiting swimming, as well as park rangers who sought to prevent swimming.  The claimant, ignoring these signs dived in and broke his neck.  He sought damages in negligence under the Occupiers Liability Act 1957.  The Court of Appeal held that he was a trespasser and so the case fell under the Occupiers Liability Act 1984.  Under the provisions of this act, the claimant was awarded damages, but these were reduced by two-thirds under the Law Reform (Contributory Negligence) Act 1945.  The council appealed to the House of Lords.

Issues

Whether the premises created a risk that the claimant should have been able to expect protection from, even as a trespasser under s1(3)(c) Occupiers Liability Act 1984.  Whether the Council had taken such steps as were necessary to reduce the risk under s1(4) of the Act.

Held

The appeal was allowed.  The council had no liability to the claimant.  The risk of danger was so obvious that it could be said that no risk arose from the state of the premises under s1(3) Occupiers Liability Act 1984.  Instead, the risk arose from the claimant’s own actions who voluntarily engaged in this risk.  The respondent was a man of full capacity who voluntarily engaged in an activity which had an inherent risk in it.  There was nothing inherent about the state of the premises which rendered them any more dangerous than could be expected, and no question of the council being expected to take any further steps to ensure that trespassers did not use the lake. 


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