Obvious risks and freely chosen dangerous activities (Tomlinson v Congleton BC)
A local council in England runs a country park with a large lake. Signs at the entrance and by the water say 'Dangerous water. No swimming'. Many people ignore the signs. Ollie, aged 20, who has visited the park since childhood and knows the lake well, wades into water a little above his knees and plunges forward head first. He strikes the sandy bottom and suffers a serious spinal injury. The lake has no hidden hazards and is no more dangerous than any ordinary stretch of open water. Ollie argues that the council should have made the beaches inaccessible, which it had considered doing.
Which of the following best describes the council's likely liability to Ollie?
Choose one answer to see the reasoning.
Worked answer
Correct answer C: The council is not liable, because the risk arose from an obvious danger in an activity Ollie freely chose, not the state of the premises, so no duty was owed.
THE RULE TO REMEMBER
An occupier is ordinarily under no duty to protect adults of full capacity from obvious risks inherent in activities they freely choose to undertake on its land.
Obvious risks and freely chosen dangerous activities (Tomlinson v Congleton BC)
In Tomlinson v Congleton BC [2003] UKHL 47, on similar facts, the House of Lords held that the occupier was not liable. Under both Occupiers' Liability Acts the duty concerns dangers due to the state of the premises or things done or omitted on them. A lake with no hidden hazards is not dangerous because of its state; the risk arose from the activity the claimant chose. Moreover, the danger of diving into shallow water was obvious to an adult. A person of full capacity who voluntarily engages in an activity with an inherent, obvious risk must ordinarily take responsibility for it, and an occupier is not required to protect him from it. That applies whether Ollie is treated as a trespasser (having entered the water to swim against the prohibition) or as a visitor. The social value of the beaches to other visitors also told against requiring them to be destroyed. Ollie's claim is therefore likely to fail.
Why A is wrong: Knowledge that people swim does not create a duty under s.1(3)(c) where the risk is obvious and the occupier cannot reasonably be expected to offer protection against it.
Why B is wrong: Even under the 1957 Act there was no duty to take further steps against an obvious risk freely run by an adult.
Why D is wrong: The 1984 Act protects adult trespassers as well as children where the s.1(3) conditions are met.
Why E is wrong: Contributory negligence only arises if the council is liable, and it is not.
A little more practice done.
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