2003 will be remembered as the year in which the House of Lords turned the tables on all those who, for years, have tried to ban all forms of bathing in inland waters and even impose restrictions on sea bathing on grounds of health and safety.
By defining the risk of injury while diving (or swimming) in an 'ordinary' stretch of water (one which contains no unexpected dangers) as one arising out of the dangerous activity not the state of the premises the judgement effectively relieves the occupier of his responsibilities under the 1957 and 1984 Occupier's Liability acts. Lord Hoffmann said:
'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'
Lord Hutton had this to say about the arguments for the claimant:
'...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 the landscape 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'       
..................................... A similar case in Australia (2005)

The Occupiers Liability Act 1957 imposes a 'duty of care' on the part of anyone who occupies (i.e. controls) land or premises to anyone who comes onto the land or premises with the occupier's permission.
The risks against which the occupier has to offer protection are defined as dangers 'due to the state of the premises or to things done or omitted to be done to them'   The House of Lords (Tomlinson v Congleton 2003) clearly ruled that, injury sustained through diving is due to the injured person engaging in a dangerous activity - not due to the state of the premises. This effectively relieves occupiers of ordinary water (where there are no hidden dangers) of their duty under the act for injuries sustained by persons engaged in dangerous activities (such as swimming).

What the courts said:
In the first of the latest two cases over claims for compensation following swimming-related accidents a large sum was awarded to a woman whose husband drowned while bathing in a pond because the National Trust, who own the site, did not display 'No Swimming' signs beside the pond. This ruling was overturned by the Court of Appeal in January 2001. The three judges said that the swimmer should have known of the obvious dangers of swimming in the pond. There were no special risks which the National Trust should have been aware of. Lord Justice May pointed out that had the award been allowed to stand warning notices would have had to be put up beside every pond, beach, riverbank and reservoir throughout the country.
In the second case the claimant, aged 18, went to Brereton Heath Park, Cheshire, in which a disused quarry had formed a lake. Ignoring warning signs, he was seriously injured as a result of making a shallow dive. The council that owns the park was aware that the lake was used by swimmers who disregarded the warnings and planned to block the entrance to the water by landscaping it but the work was not completed at the time of the accident. Two Court of Appeal judges ruled that the council was liable for one third of the damages because the circumstances were such as to impose on it a duty to carry out the planned effective deterrent to swimmers. The third judge dissenting, said that there were obvious dangers in swimming in any stretch of water other than a swimming pool. That the council promoted the site for leisure activities did not require it to prevent swimming unless it knew of a particular hazard. Even then to give a warning of such hazard should probably suffice. The Law Lords apparently agreed with him (see above).

The occupier can reduce his liability by warning a visitor of a danger but such warning is not enough to discharge his duty of care - it must enable a visitor to be reasonably safe (e.g by being clearly visible by all visitors). A notice which excludes liability for negligence is ineffective where negligence arises in the course of business.

An occupier would not be liable for injury caused as a result of a risk willingly accepted by a visitor. So, for example, if someone is injured when swimming, rock climbing or pot holing, they would be expected to have anticipated a degree of risk in the nature of the activity in which they engage. This, however, may not be the case with young children.

The 1957 Act was followed by the 1984 Act which extends the occupier's duty to people who are not invited or given permission to access land if the occupier is aware of the danger and is aware that people may come onto that land. This, however, only applies if it is reasonable and practical for the occupier to offer some protection.

When applied to swimming in lakes and rivers in the countryside a sign saying that swimmers do so at their own risk may be effective although it is less likely to be effective if there are unexpected risks or if the owner is charging for access to the water. In this case the owner has a definite duty to investigate the site and ensure that visitors cannot be harmed due to hidden dangers.
In a recent newspaper interview published in the Daily Mail on the 22nd of June 2004 Lord Phillips, at that time the Master of the Rolls - the second most senior judge in England and Wales - added his voice to those who believe that people should be free to engage in sports which are known to carry a risk and that they shall not be in a position to claim compensation in case of an accident. The judge said: "I feel very strongly that individuals should not be restrained from carrying on sporting activities that involve risk like hang-gliding or swimming" and urged councils not to cave in by outlawing such activities.
On the 23rd September 2003, Mr Justice Gross, sitting in the Queen's Bench Division, allowed an appeal by the Isle of Wight Council in the case of Simonds v Isle of Wight Council. Although the case was not connected with swimming but rather with injuries sustained in using school playground equipment, the judgement has far wider implications. In it Mr Justice Gross stated that since playing fields could not be made free of all hazards, the mere fact that a school had identified a potential hazard did not mean that it had a duty to make access or use impossible.

The fence which was erected across the traditional bathing area at Hatchmere Lake in May 2000 was dismantled by angry protesters.

Would you like to add to or comment on the information given in this article?
Please click here to email us   Thanks.