Tomlinson v Congleton Borough Council & Anor

Factual and Procedural Background

The case involves an appeal concerning an accident at a gravel pit developed as a country park. Since 1983, the defendants had established a distinction between acceptable and unacceptable water activities, with swimming classified as unacceptable. By 1988, swimming attracted overwhelming numbers on hot days. The defendants were aware of the dangers of injury or drowning associated with swimming and recognized that deterring swimming was the best protection for both themselves and the public. They devised a programme to deter swimming by making existing beaches unattractive, including covering them with soil and planting reeds. However, budget constraints delayed the completion of these works, which had only commenced at the time of the accident. The appellant seeks to renew permission to appeal based on these facts.

Legal Issues Presented

1. Whether the occupiers owed a duty of care under section 1(3) of the Occupier's Liability Act 1984 to the appellant, considering their awareness of the dangers to swimmers.
2. Whether the defendants' knowledge of substantial numbers of swimmers using or being near the mere creates a reasonable expectation to offer protection.
3. The applicability of the duty of care owed to trespassers who knowingly imperil themselves on the land, referencing an unreported decision of this Court.

Arguments of the Parties

Appellant's Arguments

• The appellant relies on section 1(3) of the Occupier's Liability Act 1984, arguing that the defendants owed a duty of care because they were aware of the dangers to swimmers.
• The defendants knew that substantial numbers of swimmers used the mere or were in close proximity to it.
• The risk was one against which the defendants might reasonably be expected to offer some protection, which they had recognized and begun to address prior to the accident.
• The appellant also relies on an unreported decision concerning the duty owed by occupiers to trespassers who knowingly imperil themselves on their land, specifically the case of Scott v Associated British Ports and British Railways Board.

Table of Precedents Cited

Court's Reasoning and Analysis

The court was persuaded by the oral submissions that permission to appeal should be granted due to the unusual facts. The analysis focused on the defendants' awareness of the dangers posed to swimmers and their recognition that deterrence was necessary for protection. The defendants had acknowledged the risk and initiated steps to mitigate it, although these were incomplete at the time of the accident. The appellant's reliance on section 1(3) of the Occupier's Liability Act 1984 was central, emphasizing the occupiers' duty of care given their knowledge of the risk and the presence of swimmers. Additionally, the court considered an unreported precedent addressing the duty owed to trespassers who knowingly place themselves in danger, reinforcing the appellant's position.

Holding and Implications

The court granted permission to appeal based on the unusual circumstances of the case and the legal arguments presented.

Permission to appeal was granted.

The decision allows the appellant to pursue the appeal on the grounds that the occupiers owed a duty of care under the Occupier's Liability Act 1984 and relevant case law concerning trespassers. No broader precedent was established by this order; its effect is procedural, enabling further consideration of the substantive issues in due course.