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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Tomlinson v Congleton Borough Council & Anor [2001] EWCA Civ 911 (18 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/911.html Cite as: [2001] EWCA Civ 911

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MANCHESTER DISTRICT REGISTRY)
(Mr Justice Jack)

		Royal Courts of Justice Strand, London, WC2A 2LL Monday 18th June 2001

LORD JUSTICE HENRY:

1. I am persuaded by oral submissions from Mr Martin QC on renewal that permission to appeal should be granted on the unusual facts of this case.
2. His submissions are based on the history of the development of the gravel pit as a country park, the almost immediate establishment (1983) of "... acceptable and unacceptable water activities ...", the latter being swimming (which by 1988 on hot days was attracting overwhelming numbers). The defendants recognised the danger of people being injured or drowning, and recognised some years before the accident that deterrence to swimming was their's and the public's best protection. A programme of deterrence by making the existing beaches unattractive to swimmers (by covering with soil and/or planting reeds) was devised, but no room was found in their budget for the works prior to the accident. At the time of the accident, the work had started.
3. On those facts the appellant relies on section 1(3) of the Occupier's Liability Act, 1984 in that he was owed a duty of care because the defendant occupiers:

a) were aware of the dangers to swimmers;

b) knew that substantial numbers of swimmers used the mere or were in close proximity to it; and

c) the risk was one against which they might reasonably be expected to offer some protection, as they themselves recognised, and by the time of the accident had commenced to put in place.

4. Mr Martin also relies on an unreported decision of this Court, to which the judge was not referred, dealing with the duty owed by occupiers to trespassers who they know are consciously imperilling themselves on their land: see Scott -v- Associated British Ports and British Railways Board (B3/1999/1194 and B3/1999/1195) - judgment given on 22nd November 2000 by a constitution presided over by Simon Brown LJ.
ORDER: Permission to appeal granted. (Order does not form part of approved Judgment)