The claimant had decided to go for a midnight swim, but was injured diving and hitting a submerged bed. The landowner appealed a finding that it was 25% liable. The claimant asserted that the defendant knew that swimmers were common.
Held: The Act imposed liability if four conditions were met: the premises were dangerous, the danger might be a risk to a trespasser, there were grounds for thinking trespass would happen, and it was reasonable to afford protection to trespassers. The duty was not owed to a class of possible trespassers, but the particular situation which had occurred. That duty might vary with circumstances.
Lord Phillips MR said: ‘An expanse of water, be it a lake, pond, river or the sea, does not normally pose any danger to a person on land. If a trespasser deliberately enters the water to swim, then the trespasser chooses to indulge in an activity which carries a degree of inherent risk. If the trespasser gets cramped or becomes exhausted and drowns, it cannot properly be said that this tragedy is attributable to the ‘state of the premises’.’ and as to Tomlinson: ‘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 condition.’
Judges: Mr Justice Brooke Lord Justice Laws Lord Phillips M.R
Statutes: Occupiers Liability Act 1984 1(3)(b)
References:  EWCA Civ 231, Times, 10-Mar-2003, Gazette, 01-May-2003,  2 WLR 1138,  QB 1008
- Tomlinson -v- Congleton Borough Council and Another, CA, Doubted, (Bailii, Gazette 23-May-02,  EWCA Civ 309)
- Ratcliff -v- G R McConnell and E W Jones, CA, Cited, (Times 03-Dec-98,  1 WLR 670)
- Tomlinson -v- Congleton Borough Council and others, HL, Cited, (Bailii,  UKHL 47, House of Lords, Times 01-Aug-03, Gazette 11-Sep-03,  3 WLR 705,  1 AC 46,  NPC 102,  32 EGCS 68,  3 All ER 1122,  PIQR P8)
- Higgs -v- W H Foster trading as Avalon Coaches, CA, Cited, (Bailii,  EWCA Civ 843)
- Hampstead Heath Winter Swimming Club and Another -v- Corporation of London and Another, Admn, Cited, (Bailii,  EWHC 713 (Admin), Times 19-May-05)
- Keown -v- Coventry Healthcare NHS Trust, CA, Cited, (Bailii,  EWCA Civ 39,  1 WLR 653)
- Portsmouth Youth Activities Committee (A Charity) -v- Poppleton, CA, Cited, (Bailii,  EWCA Civ 646)