This article was written by Mary Newnham.
What happens when someone is injured on premises while doing something dangerous, and arguably obviously so? Tomlinson v Congleton Borough Council[1] is the go-to authority for drawing the line – but what does this mean in practice, particularly following the recent Court of Appeal decision in James v White Lion Hotel?[2]
The first question to be asked is whether your case is an occupancy case at all. The duties owed by occupiers under both the 1957 and 1984 Occupiers’ Liability Acts relate to dangers “due to the state of the premises or to things done or omitted to be done on them.” In Tomlinson it was held that there was nothing about the body of water in which Mr Tomlinson injured himself “which made it any more dangerous than any other ordinary stretch of open water in England”. There was therefore no risk which gave rise to a duty under the 1957 or 1984 Acts:
“The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case can the risk be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity.”[3]
This principle can be seen at work in e.g. Keown v Coventry Healthcare NHS Trust[4] (child claimant climbed and fell from a fire escape where there was no suggestion that the fire escape had anything wrong with it as a fire escape). Very recently the Court of Appeal confirmed in Brown & Ors v South West Lakes & Ors[5] that the “state of the premises” might include references to natural features[6] but rejected arguments that this could encompass danger to vehicles who might drive a car into a reservoir from an adjacent highway. The danger was due to the driving, not the “state” of the reservoir. An attempt to distinguish Tomlinson on the basis that the claimant had left the road involuntarily (as opposed to the voluntary activity of diving) was unsuccessful, as was the argument that Keown was wrongly decided.
Having determined in Tomlinson that the Occupiers’ Liability Acts did not apply, Lord Hoffman nonetheless went on to deal with the scope of an occupier’s duty under the 1957 and 1984 Acts. It follows that the most famous sections of his speech are strictly speaking obiter. Although Tomlinson was ultimately argued as a 1984 Act case, the latter part of the judgment explicitly covers both 1984 and 1957 Acts, probably reflecting the feeling that it might have been better characterised as a 1957 Act case (per Lord Scott in particular).
The line between visitor and trespasser is not always easy to draw in this type of case. In any given case it will be important to scrutinise the terms upon which a visitor was permitted to enter. If the actions of a visitor are outside the expected or permitted conditions of entry, they can at that point become a trespasser: “When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters” (Scrutton LJ in The Calgarth [1927] P 93, 110 – and famously demonstrated in Geary v JD Wetherspoon PLC[7]), in which case the occupier will owe the more circumscribed duty under the 1984 Act.
Turning to the duty of care under s.2(2) of the 1957 Act, Lord Hoffman set out the now familiar requirement to balance the foreseeability of risk, gravity of risk, cost of preventative measures and the social value of the activity giving rise to the risk, before getting on to free will. To refresh our memories:
41. …There are two other related considerations which are far more important. The first is the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming. And the second is the question of whether the council should be entitled to allow people of full capacity to decide for themselves whether to take the risk.
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44. The second consideration, namely the question of which people should accept responsibility for the risks they choose to run, is the point made by Lord Phillips of Worth Matravers MR in Donoghue v Folkestone Properties Ltd [2003] QB 1008, 1024, para 53 and which I said was central to this appeal. Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk…
45. I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes that is their affair..
46. My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them… a duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger…”
This passage therefore comes within the discussion of the extent of the duty under s2(2) of the 1957 Act (as part of, or as an add-on to, the consideration of social value within the balancing exercise). But it is an echo of the observations made earlier about whether the danger arose from the state of the premises:
“In making this comment [“It seems to me that Mr Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous state”], the Master of the Rolls was identifying a point which is in my opinion central to this appeal. It is relevant at a number of points in the analysis of the duties under the 1957 and 1984 Acts. Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity which had inherent risk.”[8]
In practice, this aspect of Tomlinson has subsequently been cited as a free-standing or preliminary point which can defeat an occupiers’ liability claim.
In Evans v Kosmar Villas[9] (injury from diving into swimming pool) the Court of Appeal went more or less straight to Tomlinson, held that the risk was obvious and there was no duty to warn or prevent the dive. In Poppleton v Trustees of Portsmouth Youth Activities Committee[10] (fall from a bouldering wall after an attempted jump) the judgment of May LJ begins: “Adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense if the risk materialises so that they are injured.” The risk was found to be obvious and therefore there was no duty to warn or prevent. In Geary the preliminary question was phrased as ‘Was there a voluntary assumption of an obvious and inherent risk by the claimant, in circumstances which would negate any liability on the part of the defendant?’, with reference to s.2(5) of the 1957 Act. Tomlinson was cited (along with Evans and Poppleton) and it was held that Tomlinson was indistinguishable.[11] In Edwards v London Borough of Sutton[12] (fall from a low walled bridge), while there was a risk arising from the state of the premises, the defendant’s appeal was allowed in reliance on “two well recognised principles of law” arising from Tomlinson – firstly the proper treatment of risk (which was relatively small, and to be balanced against other factors); and “Secondly, occupiers of land are not under a duty to protect, or even to warn, against obvious dangers.”
In James, the deceased was staying in the defendant’s hotel and fell from a sash window while smoking. The Defendant had been prosecuted under the Health and Safety at Work Act 1974 and entered a guilty plea on the basis that the windows had not been adequately risk assessed and should have been fitted with restrictors. The defendant relied upon Tomlinson. The trial judge found that “The Deceased will have recognised that if you sit on a window sill, part out of a the window, that there is a risk you may lean too far out or lose your balance slightly, and fall. The Deceased chose to sit on the window sill and accept that risk. There was no hidden feature or element (he knew that the sash window had to be held up).” Nonetheless he found the defendant in breach of the 1957 Act, subject to 60% contributory negligence, and the defendant appealed, relying upon Tomlinson, Edwards and Geary and s.2(5) of the 1957 Act.[13]
The judgment was upheld. The comments of Davies LJ in relation to Tomlinson are of general interest:
“79. … As I read [45] to [49], Lord Hoffman appears to be placing the principle relating to a claimant’s acceptance of the obviousness of a danger as one element in a balancing exercise going to the reasonableness assessment pursuant to s.2(2) of the 1957 Act. He is balancing the obviousness of the danger against the social and financial cost of precautions. I do not read it as representing an absolute defence, rather he is identifying or considering the circumstances under which it would be reasonable to hold an occupier liable in respect of obvious dangers or risks. Lord Hoffman regarded Mr Tomlinson’s exercise of free will as an important consideration, but identified other considerations of which account should be taken, including the social value which would be lost by the preventative measures under consideration, namely destroying beaches.”
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“83. For the reasons given, I do not read Tomlinson or Edwards as being authority for a principle which displaces the normal analysis required by section 2 of the 1957 Act… What a claimant knew, and should reasonably have appreciated, about any risk he was running is relevant to that analysis and, in cases such as Edwards and Tomlinson, may be decisive. In other cases, a conscious decision by a claimant to run an obvious risk may, nevertheless, not outweigh other factors: the lack of social utility of the particular state of the premises from which the risk arises (the ability to open the lower sash window); the low cost of remedial measures to eliminate the risk (£7 or £8 per window); and the real, even if relatively low, risk of an accident recognised by the guilty plea. This was a risk which was not only foreseeable, it was likely to materialise as part of the normal activity of a visitor staying in the bedroom.”
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“88. For the reasons given, I do not accept the appellant’s primary contention. There is no absolute principle that a visitor of full age and capacity who chooses to run an obvious risk cannot found an action against an occupier on the basis that the latter has either permitted him to do so, or not prevented him from so doing.”
The Court of Appeal also characterised s.2(5) of the 1957 Act as a quasi-defence rather than defining the scope of the duty and held that the deceased’s conduct fell short of volenti as strictly defined at common law.[14]
Putting aside the merits of the decision, is this effectively a relegation of the Tomlinson principle? Claimants can use this case to argue that obviousness of danger is no longer a trump card and the Court should go through the stepwise analysis of the 1957 Act summarised in James before considering it at the end, either as a question of social value or as part of a volenti defence. The reality is that analysis of the duties under the OLAs involves consideration of overlapping factors at all stages. A judge will probably always start by considering whether this is the sort of thing an occupier should be responsible for – whether this is characterised as a question of existence of duty, scope of duty or standard of care.
In a ‘pure’ Tomlinson case, where a claimant is doing something dangerous on premises that are otherwise safe, there will still be no liability under the 1957 or 1984 Acts, because they do not apply. If there some kind of hidden danger presented by the premises, it would always have been difficult to bring the case within Tomlinson. The difficult cases are where there is something ‘unsafe’, but obviously so, about the premises. Occupier cases are and always have been particularly fact sensitive. If something is obvious but causative and easily fixed, James may be of assistance to claimants. Something more like the bridge in Edwards is going to be an easier case for occupiers to defend, on the balance of risk/ point as well as obviousness of risk.Finally, remember that the courts can and do apply significant deductions for contributory negligence in appropriate cases.
[1] [2004] 1 AC
[2] [2021] EWCA Civ 31
[3] Paragraph 27
[4] [2006] EWCA Civ 39
[5] [2022] EWCA Civ 18
[6] Supported by s.1(6A) of the 1984 Act, which was inserted by amendment by the Countryside and Rights of Way Act 2000, which referred to “a risk resulting from the existence of any natural feature”)
[7] [2011] EWHC 1506
[8] Paragraph 27
[9] [2006] EWCA Civ 1003
[10] [2009] PIQR P1
[11] Interestingly, Tomlinson makes no direct reference to s.2(5) of the 1957 Act, but was cited as authority for the same principle. In many cases it will be impossible to draw a distinction – the risk is deemed to be have been assumed because it was so obvious.
[12] [2016] EWCA Civ 1005
[13] There were further grounds relating to the relevance of the breach of the HSWA 1974, which I will not get into here.
[14] Paragraphs 67, 89-99
