Archive for August, 2009

Duty of Care to Visitors and Trespassers

Occupying property comes with a duty of care to visitors and trespassers in respect of dangers at the property (Occupiers’ Liability Acts 1957 and 1984).  Danger comes in many forms and whilst a pond, lake, river or sea side might be very attractive to many, there are those, even if warned, who carry on regardless.  Where does that leave the occupier?

In Tomlinson (FC) v Congleton Borourgh Council and others [2003] UKHL 47, a man dived into a lake in a derelict sand quarry on land open to the public and owned and managed by local authorities.  He struck his head, broke his neck and was rendered a tetraplegic.  He had acted despite signs saying “Dangerous Water.  No swimming.”  The judge found there to be no hidden dangers in the lake.  On appeal, the Master of the Rolls said “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.”  However, by a majority, the Court of Appeal found the authorities liable.  The case went to the House of Lords.  Lord Hobhouse of Woodborough recognised that there might be some risks arising from natural features on the land against which the owner should offer some protection (“for example, where there was a very narrow and slippery path with a camber beside the edge of a cliff from which a number of persons had fallen”), but generally, there should be no legal policy to protect the foolhardy or reckless few to the detriment of others.  “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.”

The law has recently been considered again (Marsden v Bourne Leisure Ltd (t/a British Holidays) [2009] EWCA Civ 671).  A 2 year old boy, on holiday with his family, drowned in a pond in a holiday park.  A judge allowed his father’s claim that the owner had breached its duty of care.  However, the Court of Appeal found that liability is not attributed on the basis that someone was to be blamed for the accident.  An occupier, exercising reasonable care, does not have to underline or emphasis an obvious peril to any conscientious parent.

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