The duty to warn guests of risks seen (with the benefit of hindsight) as being obvious has evolved significantly over the twenty years since the House of Lords (as it then was) handed down judgment in the seminal case of Tomlinson v Congleton BC [2003] 3 WLR 705 on 31st July 2023. In this article Sarah Prager KC and Andrew Spencer, both of Deka Chambers, examine the evolution of this area of law.
Where it all began: the decision in Tomlinson
The facts in Tomlinson are not unusual, although they are tragic. The Claimant, a capacitous 18 year old, dived into a shallow lake on the Defendant Council’s land, striking his head on the bottom of the lake and sustaining very serious injuries. The Council had taken steps, including the provision of signage, to prevent visitors to the lake from diving in, but prior to the accident had concluded that the only way of stopping the practice was to reshape its shore. At the time of the accident, however, funding had not yet been allocated for this purpose and the reshaping had not begun.
The Court of Appeal had accepted that the Council owed Mr Tomlinson a duty under the Occupiers’ Liability Act 1984 to try and prevent him from diving into the lake; the duty was owed under the 1984 Act rather than the 1957 Act because it was accepted on his behalf that he was a trespasser at the time he dived, knowing full well that he did not have the Council’s permission to do so. The House of Lords reversed the Court of Appeal’s decision, holding that “there was no risk to Mr Tomlinson due to the state of the premises or anything done or omitted upon the premises” and therefore that he could not bring his claim within the meaning of the Act. This is the ratio decidendi of the case, and the Court could have stopped there. Lord Hoffman chose, however, to make clear his disquiet at the notion that the Council could have owed any duty to the Claimant in respect of what was an obvious risk. He went on:
“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…A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, or in the case of employees, or some lack of capacity, such as the inability of children to recognise danger…”
He gave two reasons for this conclusion:
“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 caselaw following the decision in Tomlinson
In Evans v Kosmar [2008] 1 WLR 297 the Claimant, a capacitous 17 year old, dived into a hotel swimming pool in Corfu, striking his head on the bottom of the pool and suffering similar injuries to Mr Tomlinson as a result. The Court of Appeal held that the same reasoning applied irrespective of whether the claim was brought pursuant to the Occupiers’ Liability Act 1984 (as in Tomlinson) or in breach of contract and of the Package Travel, Package Holidays and Package Tours Regulations 1992 (as in Evans). The hotel and the tour operator were aware that guests regularly dived into the pool without reprimand, but the claim failed because there was no duty to warn against taking obvious risks:
“The core of the reasoning in Tomlinson was that people should accept responsibility for the risks they choose to run and that there should be no duty to protect them against obvious risks, subject to Lord Hoffmann’s qualification as to cases where there is no genuine and informed choice or there is some lack of capacity. That reasoning was held to apply in relation not only to trespassers but also to lawful visitors. I do not see why the reasoning should not also apply to persons to whom there is owed a duty of care in similar terms under a contract of the kind that existed in this case.”
There followed a number of cases in which claimants in various different settings failed to show that a duty was owed:
It appeared for a while that the House of Lords in Tomlinson had effectively put paid to claimants’ chances of establishing that there was a duty to take any steps in response to obvious risks, whether in breach of statutory duty or contract, or in negligence. However, more recently the Court of Appeal has clarified that there is no hard and fast rule that no duty at all is owed in respect of obvious risks.
Where we are now: the decision in White Lion Hotel v James [2021] 2 WLR 911
The claim was brought by the widow of a hotel guest who had fallen from a second floor window in circumstances which remained unclear at trial. He was probably sitting on the sill and holding the sash window open when he fell, probably so that he could lean out of the window to smoke a cigarette. The window was lower than modern building regulations require, the sash was faulty, and there was no opening regulator. The widow made a claim under the Occupiers’ Liability Act 1957, and succeeded at first instance on the basis that had the hotelier risk assessed the configuration of the window it would have taken steps to ameliorate the risk; installing an opening restrictor would have cost £7 to £8 and would have prevented the accident. The hotelier appealed, relying on the line of authorities following Tomlinson and contending that the risk inherent in leaning out of a low window whilst holding it open was an obvious one against which there was no duty to guard.
The Court of Appeal found that the fact that the injured party had chosen to run an obvious risk was one of a number of factors to consider when determining whether there was a duty to warn but that there might be circumstances in which there is a duty to warn of an obvious risk. In the present case there was no social utility in the configuration of the window and the problem was easily and cheaply solved. The Court held:
“At the time of the deceased’s fall there was an identified risk which arose from the state of the premises, namely the ability to fully open the lower sash of a window with a low sill which gave rise to the risk of a person falling out of it. The window was not safe for all normal activities as, if opened, which is the very purpose of sash windows, it presented the risk of a fall as it was so low relative to the centre of gravity of many adults.”
This is of course a point of distinction from Tomlinson, where there was no danger from the ‘state of the premises’, but not from the line of authority which followed that decision, in which (at least arguably) a number of the risks arose from the state of the premises.
The Court of Appeal placed the following gloss on the decision in Tomlinson:
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.
The court went further to place considerable emphasis on the fact that the occupier was a hotelier, raising the question of whether hoteliers owe a higher duty than other occupiers:
“In my judgment, there is a material difference between a visitor to a park, even a pub, and a guest in a hotel. During the time the guest is in the hotel room it is a “home from home”. The guest in the room may be tired, off-guard, relaxing and may well have had more than a little to drink. Despite notices to the contrary he may be tempted to smoke out of the window and in hot weather the guest will want fresh air, particularly, as in this case, in a room with no air conditioning. As the judge observed, these are “facts of life” for any hotelier. These are normal activities.”
White Lion has been followed in Ashton v City of Liverpool Young Men’s Christian Association [2023] EWHC 707 (KB), where there was found to be a duty under the Occupiers’ Liability Act 1957 to ensure that the windows of a YMCA hostel were properly restricted, although the obvious risk point does not appear to have been argued in that case.
Conclusion
Clearly Tomlinson remains good law twenty years after it was decided, but it may be that the decision of the Court of Appeal in White Lion marks a softening of the courts’ approach to claims of this nature, and that the next twenty years will see a shift away from what some have seen as a blanket defence, no matter the egregiousness of the failure on the part of the defendant. It will be interesting to conduct a further review of this area of law in 2043.
This article was first published in PI Focus January 2024.
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