C/o The Courthouse
Courthouse Street
Otley
Ms
Jackson
Chief
Executive’s Department
Legal
& Democratic Services
Civic
Hall
Dear
Ms Jackson, 2nd
May 2007
Wharfemeadows
Action Group (WAG) has considered your correspondence dated 17th
April 2007 and hope that the following letter and the appendages clarify
how WAG understands the legal situation.
This correspondence is written without prejudice.
WAG
presented the deputation to the Council meeting on 18th April. A
meeting, arranged by Greg Mulholland between Tom Mullarkey Chief Executive of
RoSPA and Peter Cornall Head of Leisure Safety for RoSPA and WAG took place on
Friday 27th April. The correspondence sent from WAG to RoSPA related
to that meeting is enclosed for your information in Appendix
1.
We
would like to explain that initially we were surprised at the level of media
interest in this campaign. However, extensive research conducted since February
22nd explains why this issue has significance both locally and
nationally. This information is also provided in Appendix
1.
To date it appears that there has been no risk
assessment undertaken for
The
Tomlinson Case, we are given to understand, is a ‘Lead Case’. It has been described as bringing common sense back
into the law. We believe that the judiciary was paving the way for Lord
Falconer’s Keynote Address to the Commercial Bar Association’s lecture in
November 2005, where Lord Falconer stated that ‘We all want to tackle the
perceptions that can lead to a disproportionate fear of litigation and
risk-averse behaviour’.
We
wish you to note the following Law Lords’ Opinions which are quoted in full
regarding the case Tomlinson v Congleton Borough Council because these have
relevance. We hope that by re-stating the Law Lords’ Opinions we can demonstrate
to you why the decision, which you tell us is now under review, has to be fully
re-considered with an accurate reading of Tomlinson informing the
deliberations. Wharfemeadows Action Group still needs to be confident that both
RoSPA and Leeds City Council fully recognise the significance of Tomlinson 2003
throughout the further review stage process.
Lord Hoffman in para 3-4 explains;
“ After sitting in the hot sun for a couple of hours, John Tomlinson decided that he wanted to cool off. So he ran out into the water and dived. He had done the same thing many times before. But this time the dive was badly executed because he struck his head hard on the sandy bottom. So hard that he broke his neck at the fifth vertebra. He is now a tetraplegic and unable to walk.
It is a terrible tragedy to suffer such an injury in consequence of a relatively mindless act of carelessness. It came nowhere near the stupidity of Luke Ratcliff, a student who climbed a fence at 2.30 am on a December monring to take a running dive into the shallow end of a swimming pool (see Ratcliff v McConnell [1999] 1WLR 670) or John Donoghue, who dived into Folkstone Harbour from a slipway at midnight on 27 December after an evening in the pub (Donoghue v Folkestone Properties Ltd [2003] 2 WLR 1138). John Tomlinson’s mind must often recur to that hot day which irretrievably changed his life. He may feel, not unreasonably, that fate has dealt with him unfairly. And so in these proceedings he seeks financial compensation: for the loss of earning capacity, for the expense of the care he will need, for the loss of ability to lead an ordinary life. But the law does not provide for such compensation simply on the basis that the injury was disproportionately severe in relation to one’s own fault or even not one’s own fault at all. Perhaps it should, but society might not be able to afford to compensate everyone on that principle, certainly at the level which such compensation is now paid. The law provides compensation only when the injury was someone else’s fault.”
Lord Hoffman Para. 38 concludes:
“In the case of the 1984 Act, there is the additional consideration that unless in all the circumstances it is reasonable to expect the occupier to do something, that is to say ‘offer the other some protection’, there is no duty at all. One may ask what difference there is between the case in which the claimant is a lawful visitor and there is in principle a duty under the 1957 Act but on the particular facts no duty to do anything, and the case in which he is a trespasser and there is on the particular facts no duty under the 1984 Act. Of couse in such a case the result is the same. But Parliament has made it clear that in the case of a lawful visitor, one starts from the assumption that there is a duty whereas in the case of a trespasser one starts from the assumption that there is none.”
Re: occupiers’
liability – The balance under the 1957 Act
Lord Hoffman in
“My
Lords, it will in the circumstances be convenient to consider first the
question of what the position would have been if Mr Tomlinson had been a lawful
visitor owed a duty under section 2 (2) of the 1957 Act. Assume, therefore,
that there had been no prohibition on swimming. What was the risk of serious
injury? To some extent this depends upon what one regards as the relevant risk.
As I have mentioned, the judge thought it was the risk of injury through diving
which the Court of Appeal thought it was the kind of injury which could happen
to people in the water. So I accept that
we are concerned with the steps, if any, which should have been taken to
prevent any kind of water accident. According to the Royal Society for the
Prevention of Accidents, about 450 people drown while swimming in the
I
turn then to the cost of taking preventative measures. Ward LJ described it
(£5,000) as “not excessive”. Perhaps it was not, although the outlay has to be
seen in the context of the other items (rated “essential”and “highly
desirable”) in the Borough Council budget which had taken precedence over the
destruction of the beaches for the previous two years.
I
do not however regard the financial cost as a significant item in the balancing
exercise which the court has to undertake. 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.
The
Court of Appeal made no reference at all to the social value of the activities
which were to be prohibited. The majority of people who went to the beaches to
sunbathe, paddle and play with their children were enjoying themselves in a way
which gave them pleasure and caused no risk to themselves or anyone else. This
must be something to be taken into account in deciding whether it was
reasonable to expect the Council to destroy the beaches.
I
have the impression that the Court of Appeal felt able to brush these matters
aside because the Council had already decided to do the work. But they were
held liable for having failed to do so before Mr Tomlinson’s accident and the
question is whether they were under a legal duty to do so. Ward LJ placed much
emphasis upon the fact that the Council had decided to destroy the beaches and
that its officers thought that this was necessary does not show that there was
a legal duty to do it. In Darby v
National Trust [2001] PIQR 372 the claimant’s husband was tragically
drowned while swimming in a pond on the National Trust estate at Hardwick Hall.
Miss Rebecca Kirkwood, the Water and Leisure Safety Consultant to RoSPA, gave
uncontradicted evidence, which the judge accepted, that the pond was unsuitable
for swimming because it was deep in the middle and the edges were uneven. The National
Trust should have made it clear that swimming in the pond was not allowed and
taken steps to enforce the prohibition. But May LJ said robustly that is was
for the court, not Miss Kirkwood, to decide whether the Trust was under a legal
duty to take such steps. There was no duty because the risks from swimming in
the pond were perfectly obvious.”
Re: occupiers’ liability and free will
Lord Hoffman in para 45 states:
“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 within 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. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.”
Lord Hoffman in para 47 continues:
“It is of course understandable that organisations like RoSPA
should favour policies which require people to be prevented from taking risks.
Their function is to prevent accidents and that is one way of doing so. But
they do not have to consider the cost, not only in money but also in
deprivation of liberty, which such restrictions entail. The courts will
naturally respect the technical expertise of such organisations in drawing
attention to what can be done to prevent accidents. But the balance between
risk on the one hand and individual autonomy on the other is not a matter of
expert opinion. It is a judgment which the courts must make and which in
Lord Hoffman in para 50 rules that:
“My Lords, for these reasons I consider even if swimming had not been prohibited and the Council had owed a duty under section 2(2) of the 1957 Act, that duty would not have required them to take any steps to prevent Mr Tomlinson from diving or warning him against dangers which were perfectly obvious. If that is the case, then plainly there can have been no duty under the 1984 Act. The risk was not one against which he was entitled under section 1(3) (c) to protection. I would therefore allow the appeal and restore the decision of Jack J. It follows that the cross-appeal against the apportionment of damages must be dismissed.”
Lord Hutton rejected the
“I thought for a time that this reasoning was persuasive, but I have concluded that it should not be accepted because I consider it is contrary to a principle stated in the older authorities which is still good law. In Stevenson v Glasgow Corporation 1908 SC 1034 Lord M’Laren stated:
‘in a
town, as well as in the country, there are physical features which may be
productive of injury to careless persons or to young children against which it
is impossible to guard by protective measures. The situation of a town on the
banks of a river is a familiar feature; and whether the stream be sluggish like
the Clyde at
Lord Hobhouse of Woodborough in his Opinions in para 77-78 states:
“Funds were short but in 1994 a request for finance was presented. It was based upon the public’s disregard of the embargo on bathing in the lake despite having ‘taken all reasonable steps’ to educate the public. The request states that ‘we have on average three of four near drownings every year and it is only a matter of time before someone dies’. ‘If nothing is done about [the landscaping] and someone dies the Borough Council is to be held liable and would have to accept responsibility’. This was the nub of the claimant’s case. The situation was dangerous. The defendants realised that they should do something about it – remove the beaches and make the water’s edge less unattractive and not so easily accessible. They recognised that they would be liable if they did not do so. This reasoning needs examining.
The first point to be made is that councils were always at liberty, subject to the Local Government Acts, to have and enforce a no swimming policy. Indeed this had all along been one of the factors which has driven their management of this park. Likewise, subject to the same important qualification, they were at liberty to take moral responsibility for and pay compensation for any accident that might occur in the park. It is to be doubted that this was ever, so stated, their view. But neither of these factors create any legal liability which is what is in question in the present case. If they mistakenly misunderstood what the law required of them or what their legal liabilities were, that does not make them legally liable.”
Lord Hobhouse of Woodborough in para states further in para 81:
“The fourth point, one which I know your Lordships attach importance, is the fact that it is not, and should never be, the policy of the law to require protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coast line and other beauty spots to be lined with warning notices? Does the law require that attractive water side picnic spots be destroyed because of a few foolhardy individuals who choose to ignore warning notices and indulge in dangerous activities only to themselves? The answer to all these questions is, of course, no. In truth, the arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen.”
We hope you find our understanding of the legal position helpful.
Yours sincerely,
Tony Hartigan
Linda Lukats
Sylvia Reid
cc:All Executive Board Members; Ward Members for Otley
& Yeadon; Greg Mulholland;
Contents
Appendix
1 – The significance of the decision now and in the future
Appendix
2 – Aide memoire of meeting 27th April 2007